Plaintiffs Can Seek Relief From Mandatory Dismissals After a Failure to File

Minnesota Supreme Court holds Rule 60.02 Motions to Vacate can revive
cases dismissed under Rule 5.04 for failure to file within one year;
District Courts have discretion under Rule 60.02

Laura Moehrle

By: Laura A. Moehrle - September 1, 2016

Yesterday, the MN Supreme Court issued a pair of decisions - Gams v. Houghton and Cole v. Wutzke - related to the one year filing deadline under Minn. R. Civ. P. 5.04. Specifically, the Court answered the question whether a party can seek relief from a dismissal by bringing a motion to vacate pursuant to Rule 60.02, and if so, how Rule 60.02 should be applied.

In Gams, the Minnesota Supreme Court held that where a case is deemed dismissed by Rule 5.04, a plaintiff may seek relief under Rule 60.02. The Court emphasized the "broad discretion" of the district court in evaluating whether the moving party has met the requirements of Rule 60.02 and in the case of excusable neglect, met the Finden factors. [ Finden requires proof the moving party has (1) a reasonable claim or defense on the merits; (2) a reasonable excuse for the neglect; (3) acted diligently after notice of entry of judgment; and (4) demonstrated that no prejudice will occur to the opposing party.]

In Cole, the Court held that the moving party must prove all four Finden factors in connection with a motion to vacate a Rule 5.04 dismissal. The Court examined the Finden factors, notably including whether the "reasonable excuse" factor applies to the mistakes of a lawyer versus the mistakes of a client. While the Court noted the long standing proposition that clients should not be made to suffer for the mistakes of counsel, the Court also commented that not all mistakes, whether by a party or its attorney, are subject to relief. The Court did not establish a bright-line rule regarding how to apply the Finden factors and instead offered points on both sides, and seems to leave the decision of whether the failure to file is excusable solely in the hands of the district court, with a broad grant of discretion.

If you have any questions, please give us a call.

Batten Down The Hatches - Dealing With Business Lawsuits

September, 2016

Melinda Sanders Kenneth Bayliss

By: Melinda M. Sanders and Kenneth H. Bayliss

Most businesses will eventually be faced with some type of lawsuit. Here are basic tips to help you through the process:

Don't Ignore the Lawsuit Papers

If you receive a Summons and Complaint, you must respond, usually within 20 days. Failure to respond in a timely manner will lead to results you would rather avoid.

Don't Do Anything Foolish Upon Receiving Lawsuit Papers

Before anything else, take a deep breath and step back. Try not to react emotionally to the lawsuit. Understand that while litigation may be painful it's the best mechanism our society has for resolving many disputes. Do not contact the other party to vent your frustrations. Do not make any statements about the matter and get your attorney on the line quickly.

Hire an Attorney

Civil lawsuits have very technical processes and it is to your advantage to work with an attorney. Contact your business advice attorney and if he or she is not a litigator, seek a referral to an attorney who is. It is important to hire experienced attorneys, ones familiar with litigation and knowledgeable in assessing strategy and the value of your case.

Make Sure To Retain Relevant Evidence: The Litigation Hold

Once you know of a claim you will need to implement a "litigation hold." This preserves all evidence that may be relevant to the lawsuit, including documents, photographs, emails, texts, voicemails, and metadata. You may have a fantastic case, but if information in your control goes missing, the judge or jury may blame you for it and assume the worst.

Understand the Process

In very basic outline, here is the process you will go through during the lawsuit:

  • Answering the Complaint

You will work with your attorney to file an answer to the Complaint. If you have a potential claim against the other party, discuss it with your attorney at this time.

  • Initial Disclosures

Parties must automatically exchange basic information about the lawsuit. This includes information about key witnesses and documents, an itemization of damages, and insurance information.

  • Written Discovery and Depositions

Both sides are permitted to serve written questions on each other and request documents. This process, "discovery," also allows the parties to take depositions. Your attorney will be present and will prepare you in advance if you are deposed.

  • Mediation

Current rules require the parties to consider "Alternative Dispute Resolution" ("ADR"). In most cases this will be mediation, a non-binding process. Most cases settle at mediation or shortly thereafter. Sometimes it will be appropriate to try to mediate the case very early on.

  • Trial

When lawsuits are not resolved by motions or ADR, they are tried to a judge or a jury. Trials usually take place within approximately one year of the filing of the lawsuit, though there is considerable variation in the amount of time from filing to trial. Once the matter is tried-either to a judge or jury-a decision will be handed down. Parties generally have 60 days to appeal from the decision of the judge or jury.

  • Keep Your Eye on the Ball

During the lawsuit, make sure you focus on your business, and remember your business is not the lawsuit. Do not let the fear of what might end up on the expense side of the balance sheet cause you to ignore the revenue side. And almost as importantly, try to control your reaction to the lawsuit. Do not let it rule your life.

Abiding these few tips will help you better navigate the seas of litigation.



Plaintiffs Cannot Avoid Swanson v. Brewster Offset by "Buying the Lien"

Laura Moehrle

Dyan Ebert Mike LaFountaineBy: Laura A. Moehrle, Dyan Ebert, Mike Lafountaine - July 20, 2016

Yesterday afternoon, the Minnesota Supreme Court issued an order denying the plaintiff's petition for further review of the Court of Appeals' decision in Auers v. Progressive Insurance Co., 878 N.W.2d 350 (Minn. Ct. App. 2016). As a result, the published decision by the Court of Appeals in favor of Progressive remains in force and prevents a plaintiff who "buys the lien" from obtaining a double recovery.

This is a significant decision for the defense bar because it rejects an argument that has been advanced by plaintiffs since the 2010 Supreme Court decision in Swanson v. Brewster - namely that a plaintiff can buy and assert a health insurer's subrogation right, and prevent both the amount paid and amount of the discount received by the health insurer, from offsetting a damages award as a collateral source.

This case concerns the application of Minnesota's Collateral Source Statute - Minn. Stat. § 548.251. The parties stipulated Mrs. Karen Auers incurred $178,083.44 in past medical expenses related to an automobile accident. The parties also stipulated that the total damages ought to be reduced by the $20,000.00 payment by Mrs. Auers no-fault carrier.

The remaining $158,083.44 was wholly satisfied by the Mrs. Auers health insurer BCBS, who paid $72,216.85 and received a discount of $85,869.59. BCBS asserted a subrogation right for $72,216.85. Respondent Auers purchased, and received an assignment of, BCBS's subrogation right. Respondent Auers then argued that the recoverable damages could not be reduced by the amount of the negotiated discount because Auers had purchased and asserted BCBS's subrogation rights and therefore the collateral source statute exempted both the amount paid by BCBS and the amount of the negotiated discount from reduction under the collateral source statute.

Progressive disagreed, arguing Respondent Auers was allowed to collect the amount BCBS paid, but the negotiated discount remained a collateral source to be deducted from the award.

The Court of Appeals agreed with Progressive, holding that a subrogation right is limited to the amount actually paid by a collateral source entity. The Court stated "the negotiated discounts remain collateral sources to be deducted from the injured party's verdict under Minn. Stat. § 548.251."

Plaintiff sought further review of this decision in the Minnesota Supreme Court, but the Supreme Court has denied plaintiff's request.

This case was handled by Dyan Ebert, Mike LaFountaine and Laura Moehrle of the Quinlivan & Hughes firm. If you have any questions, please feel free to contact us.

Quinlivan & Hughes Sanders dances for Anna Marie's Alliance

Sunday, 26 June 2016

Six couples took to the floor outside the Stearns History Museum Monday night to dance for the possibility to win $15,000 for their favorite charity. Watch the video to see Quinlivan's Melinda Sanders dancing for charity. Source:



Laura Moehrle

Dyan Ebert Mike LaFountaineBy- Laura Moehrle, Dyan Ebert, Mike LaFountaine - April 25, 2016

Earlier today, the Minnesota Court of Appeals issued its published decision in Auers v. Progressive Insurance Company (No. A15-1832) in favor of Progressive, holding (1) a subrogee that has negotiated a discount of medical expenses may not assert a subrogation right for that discount under Swanson v. Brewster, and (2) an injured Plaintiff who purchases the subrogation interest of a health insurance carrier is not entitled to recover the amount of the negotiated discount.

This is a significant decision for the defense bar because it rejects an argument that has been advanced by plaintiffs since the 2010 Supreme Court decision in Swanson v. Brewster - namely that a plaintiff can buy and assert a health insurer's subrogation right, and prevent both the amount paid and amount of the discount received by the health insurer, from offsetting a damages award as a collateral source.

This case concerns the application of Minnesota's Collateral Source Statute - Minn. Stat. § 548.251. The parties stipulated Mrs. Karen Auers incurred $178,083.44 in past medical expenses related to an automobile accident. The parties also stipulated that the total damages ought to be reduced by the $20,000.00 payment by Mrs. Auers no-fault carrier.

The remaining $158,083.44 was wholly satisfied by the Mrs. Auers health insurer BCBS, who paid $72,216.85 and received a discount of $85,869.59. BCBS asserted a subrogation right for $72,216.85. Respondent Auers purchased, and received an assignment of, BCBS's subrogation right. Respondent Auers then argued that the recoverable damages could not be reduced by the amount of the negotiated discount because Auers had purchased and asserted BCBS's subrogation rights and therefore the collateral source statute exempted both the amount paid by BCBS and the amount of the negotiated discount from reduction under the collateral source statute.

Progressive disagreed, arguing Respondent Auers was allowed to collect the amount BCBS paid, but the negotiated discount remained a collateral source to be deducted from the award.

The Court of Appeals agreed with Progressive, holding that a subrogation right is limited to the amount actually paid by a collateral source entity. The Court stated "the negotiated discounts remain collateral sources to be deducted from the injured party's verdict under Minn. Stat. § 548.251."

This case was handled by Dyan Ebert, Mike LaFountaine and Laura Moehrle of the Quinlivan & Hughes firm. If you have any questions, please feel free to contact us.

Scope of Informal Conference Includes Treating Doctors'

Opinions on Standard of Care; Causation

Laura Moehrle

Steve Schwegman Jim McAlpine

By - Laura Moehrle, Steve Schwegman, Jim McApline - March 11, 2016

Earlier this week, the Minnesota Court of Appeals held an informal conference pursuant to Minnesota Statute § 595.02 subd. 5 allows inquiry into "any information or opinion" held by the physician, including opinions regarding the standard of care and causation. Howard v. Svoboda, A15-0896 (Minn. Ct. App. March 7, 2016).

In Howard, the District Court issued a protective order at plaintiff's request precluding defendants from asking a treating physician about the standard of care applicable to other providers who cared for the plaintiff and whether any breach of the standard of care caused injury to the plaintiff. On appeal, the Court of Appeals reversed, holding Minnesota Statute § 595.02 subd. 5 allows the parties to ask a treating physician about "any information or opinion in the possession of the health care provider." The Court noted that while a treating physician cannot be asked to form an opinion on standard of care or causation during an informal conference, if a treating physician already has an opinion on these issues, inquiry into that opinion is permissible as part of the informal conference.

If you have any questions regarding this holding, please feel free to give us a call.

Minnesota Supreme Court Holds Insureds Can Recover No-Fault Benefits for Damages Recovered in a Prior Negligence Action

Laura Moehrle

Jim McAlpineBy: Laura Moehrle and James McAlpine - December 16, 2015

Earlier today, the Minnesota Supreme Court issued a decision holding that an insured may recover no-fault benefits for medial expenses and wage loss even if those expenses were previously recovered in a tort action. State Farm v. Lennartson and Foss, No. A14-0132; A14-0224.

In reaching this holding the Supreme Court determined that neither the No-Fault Act nor collateral estoppel (doctrine precluding re-litigation of issues determined in an earlier action) bars a plaintiff from collecting no-fault benefits for amounts awarded against and paid by a tortfeasor.

As a result of the Court's decision, we may expect to see plaintiffs/insureds waiting to bring a no-fault claim until after trial on the tort action. The potential impact of delaying the no-fault action until after the tort action includes:

- Decreasing the total amount of collateral source offsets available to a defendant (resulting in a higher net damages award)

- Increasing the amount of money a plaintiff can collect from a tortfeasor

- Allowing the Plaintiff to recover from the tortfeasor and the no-fault carrier for the same medical expenses or wage loss, resulting in a double recovery.

A concurring opinion was filed by two Justices, which emphasizes that the language of the law as written by the Legislature is in conflict with the statute's purpose of providing a prompt recovery of economic loss damages and saving litigation as a last resort. The minority seems to call for Legislative action to change the law to avoid this outcome.

If you have any questions about this decision or how it may impact pending claims, please feel free to give us a call


Tuesday, 24 November 2015

Laura Moehrle John Sullivan

By Laura A. Moehrle, Quinlivan & Hughes, P.A. and John A. Sullivan, Quinlivan & Hughes, P.A.

Civil Procedure professors liked to emphasize the distinction between how an action is commenced in federal court versus Minnesota state court. In law school, We understood the difference to be that an action commences in federal court when the summons and complaint are filed; and the action commences in Minnesota when the summons and complaint are served.

We never quite grasped the professor's astonishment that a lawsuit may be commenced and fully litigated--short of trial and assuming no motions requiring judicial involvement-- without a summons and complaint filed with the court. It should not be a surprise that Minnesota, North Dakota and South Dakota are the only states that permit actions to be commenced by "pocket filing" -- service of the complaint rather than by filing it with the court.

The amendment to Minnesota Rule of Civil Procedure 5.04 (Rule 5.04) has placed restrictions on this phenomenon known as "pocket filing." The rule does not change the practice regarding commencement of actions-- commencement is still accomplished by service, and filing is not required at that time. However, Rule 5.04 requires that after an action is commenced against a party, the matter must be filed with the court within one year or the matter will be dismissed against all parties, with prejudice.

The language in Rule 5.04 unequivocally states that unless the parties sign a stipulation extending the filing period, the action must be filed within one year of commencement or it is deemed dismissed with prejudice-- meaning on the merits. At the same time, recent district court decisions indicate the rule is not as clear-cut as counting 365 days from service of process or that July 1, 2014 really meant July 1, 2014. The first ten months of Rule 5.04's enforcement have seen a few district court cases releasing the one-year trap for the unaware attorney and disagreement with respect to the role of Rule 60.02 in relation to relief from Rule 5.04


The goal of the amendment was not to create more dismissals of actions, but to require that each action be filed, and placed under court management and scheduling within the first year. In theory, the requirement for mandatory filing after one year curtails the problems caused by excessive delay, helps the court to know what cases are out there, and guarantees greater access to the courts for all litigants.

The Rules Subcommittee and the Minnesota Supreme Court Civil Justice Reform Task Force, which participated in creating the rule, wanted to curb the consequences of pocket filing, particularly issues of excessive cost and delay. Recommendations of the Minnesota Supreme Court Civil Justice Reform Task Force Final Report, December 23, 2011 (Task Force Report), p. 21. The Task Force did not believe abolishing service without filing was warranted or worth the confusion that would follow and the energy required to implement it. Id. at 22. However, maintaining the status quo meant the court was not able to effectively manage and expedite each action. The Task Force felt the one-year filing requirement was a happy medium for the problem. Id. This would give the parties one year to litigate, resolve any issues, or even settle the case without any judicial involvement, but if the case could not be resolved within a year, would require that the case be filed and subjected to judicial supervision and management.

The Task Force presented two alternatives to the Minnesota Supreme Court: 1) "Dismissal with prejudice after one year unless parties within that year sign a stipulation to extend the filing period" or; 2) "Dismissal without prejudice but filing is required to reinstate the case." Id. at p. 23. The Minnesota Supreme Court considered the rule for many months and decided on the dismissal with prejudice, with a small transition period for the implementation of Rule 5.04. Any action commenced at any time before July 1, 2013 had until July 1, 2014 to satisfy the rule requirements. Any complaint served after July 1, 2013 has to be filed with the court within one calendar year.

It is unknown to what extent Rule 5.04 will increase revenue to the courts, but it will have an impact. The Task Force cited statistics from New York. In 1991, New York replaced hip-pocket filing with a requirement to file within 30 days of service, and then in 1992, required filing to commence a lawsuit. It is estimated that the first year impact was an increase of $10 million in filing revenue, representing approximately a 20 percent increase. Id. at 21.

As this rule starts to be enforced, courts have been required to interpret the new rule's boundaries.


The most important issue that needs to be decided is whether Minnesota Rule of Civil Procedure 60.02 (Rule 60.02) governing motions to vacate is a safety net to prevent a Rule 5.04 dismissal. Rule 5.04 does not discuss whether relief from the dismissal is available, but some district courts have suggested Rule 60.02 might be applicable to vacate a dismissal if the criteria of the rule are met. Other courts have suggested Rule 60.02 does not apply to Rule 5.04 dismissals.

Rule 60.02 provides that a final judgment can be vacated under certain circumstances. The relevant part of the rule states, "The court may relieve a party or the party's legal representatives from a final judgment...for the following reasons: (a) Mistake, inadvertence, surprise, or excusable neglect." Minn. R. Civ. P. 60.02. When determining whether to grant relief under Rule 60.02, the supreme court has outlined four factors that the court should consider, namely whether the moving party:

Has a meritorious claim or defense;

Has a reasonable excuse for failure to act;

Has acted with due diligence after the notice of the entry of judgment; and

Shows that no substantial prejudice will result to the other party if relief is granted.

Finden v. Klaas, 128 N.W.2d 748, 750 (Minn. 1964). The plaintiff must meet all four factors of the test. Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997).

For all practical purposes, the second factor -- reasonable excuse for failure to act -- is the most important for practitioners. They use it to show no excusable neglect is present. Rule 60.02 motions should be examined against the backdrop of the creation and implementation of Rule 5.04. First, practitioners should focus on the length of time the rule gave practitioners to file the complaint. Rule 5.04 provided a one-year time period for the plaintiff to act and file the lawsuit. The supreme court chose the harsher alternative but gave all cases commenced before July 1, 2013 a whole year to file the case. Arguably, one year is more than significant time, and it is tough to discern an excuse for not filing that would be "reasonable." Most of the cases that have been affected by the rule to date were commenced months or years before July 1, 2013, and were then given an additional year until after the July 1, 2014, deadline for filing. Also, most of the case law surrounding Rule 60 arose in the context of re-opening a default judgment, when a defendant failed to file an answer in a short 20-day period. In contrast, practitioners did not have days to file the complaint to avoid a Rule 5.04 dismissal but had an entire year.

Second, practitioners may have difficulty claiming s/he lacked knowledge of the intricacies of the rule, especially since the rule had been in effect since July 2013. It is important to note that all of the changes to the Minnesota Rules of Civil Procedure in 2013 and Rule 5.04, in particular, were widely publicized to the entire Minnesota bar. In a Bench & Bar article "Reducing Cost & Delay: Minnesota Courts Revise Civil Case Handling" posted June 5, 2013, Judge Louise Bjorkman and practitioner David Herr stated clearly that "[t]he new rules take effect on July 1, 2013, and apply to pending actions as well as those filed after the effective date." The article also stated that no dismissals will occur prior to July 1, 2014, giving those who had pending cases well over one year to comply with the new rule and file the case. The supreme court adopted the rule on February 4, 2013 and made clear it applied to pending cases and the timeline for each case.

In addition to Rule 60.02, a number of practitioners have made constitutional arguments to invalidate Rule 5.04 dismissal, but this argument seems to be without merit or authority. The Minnesota Supreme Court has the right to enact rules that govern the judicial handling of cases. A proponent of a Rule 5.04 dismissal may argue there was more than an adequate period of time to allow the practitioners and their clients to file their cases. Cases are dismissed for a variety of reasons on Rule 12, Rule 56, for insufficient process and service of process, for lack of jurisdiction, on statute of limitations grounds, etc., and now under Rule 5.04. The right to a jury trial has not historically served to trump these dismissals.


On the next page are four recent Rule 5.04 cases considered by the district courts. The timeline is similar for all three but the outcomes vary slightly.

Mallan v. Dexter Township

In Mallan v. Dexter Township (50-CV-14-1695, Mower County District Court). the plaintiff was injured in a motorcycle accident and commenced the action on March 13, 2013. As fate would have it, plaintiff's counsel neglected to file the complaint. The parties conducted discovery. On July 17, 2014 (16 days after the deadline for unfiled complaints) defense counsel moved to have the case dismissed. The court dismissed the action and the plaintiff brought a motion to reopen pursuant to Rule 60.02.

Judge Kevin Siefken wrote a colorful opinion analogizing Rule 5.04 to Noah's Ark.

He states:

For many years, civil actions were commenced and the courts knew nothing of them. Litigants placed their complaints and answers in their hip pockets and proceeded to litigate their cases. But then the Supreme Court saw that many cases were not resolved. Years went by without action. Thousands of cases lay in the weeds, waiting to strike at any time. The Court had no way to purge them from the Earth. So the Court declared that it would send a flood. The flood would take the form of Rule 5.04.

The judge continued:

Time passed, and many actions were gathered. On the last day, those actions that were not gathered upon the boat, were washed away by the flood; well most of those actions. Some recognized that the best course of action when you miss the last boat out is to swim --very fast. With the help of a life preserver provided by Rule 60.02, these stragglers hope to catch the boat and be saved from the flood.

The court concluded that plaintiff satisfied the necessary factors under Rule 60.02 to reopen the action and vacate the Rule 5.04 dismissal order. The July 1, 2014 deadline became a July 17, 2014 deadline. The decision is now being appealed.

Gams v. Houghton

In Gams V. Houghton, (69VI-CV-14-478, St. Louis County District Court), plaintiff and defendant were in an altercation on January 14, 2012. Plaintiff suffered a broken femur and incurred medical bills. On March 22, 2013, plaintiff served the summons and complaint and the parties conducted discovery. Defendant sent plaintiff letter on July 15, 2014, stating "The new Rule 5.04 took effect July 1, 2014. Therefore, the case is deemed to be dismissed with prejudice and we consider the matter closed." Plaintiff filed the complaint in court on August 7, 2014 and the court entered an order for dismissal, with prejudice.

On August 27, plaintiff filed a motion to vacate the judgment under Rule 60.02, and on August 28, sought review from the court of appeals. The district court ruled that Rule 60.02 is not a life preserver for Rule 5.04 dismissals, and the proverbial flood had washed plaintiff's action to the deepest depths of the sea. Also, the court noted that even if Rule 60.02 did apply to the case, plaintiff did not prove all four Rule 60.02 elements. The court of appeals dismissed the appeal as premature, but the district court's October 1 order is now being appealed.

Cole v. Wutzke

In Cole v. Wutzke (02-CV-14-4474, Anoka County District Court), the plaintiff commenced the suit on June 5, 2013. Plaintiff and defendant participated in discovery from July 2013 to March 2014. The parties did not contact each other between April and July 2014. Plaintiff filed the complaint on July 23, 2014, and defendant moved to dimiss the action pursuant to Rule 5.04. On August 29, 2014, plaintiff filed a motion to vacate judgment under Rule 60.02, arguing that the failure to file the complaint in compliance with Rule 5.04 was the result of excusable neglect.

Judge Daniel O'Fallon dismissed the complaint with prejudice and stated:

The Court cannot find that ignorance of the law constitutes excusable neglect... Plaintiff's counsel failed to learn of the changes... As noted by the court, the changes were widely available on a number of websites. Further, if ignorance of the law is excusable neglect, then the exception would swallow the rule.

The district court's order is now being appealed.

Luce v. Spoden

Luce v. Spoden (86-CV-14-4194, Wright County District Court), was commenced on March 26, 2013. The action was not filed until August 7, 2014. On October 8, 2014, the court dismissed the case with prejudice and judgment was entered. Plaintiff filed a motion for relief from judgment under Rule 60.02.

Judge Michael Davis granted Plaintiff's motion and stated Rule 60.02 is a safety net for Rule 5.04. "[G]iven the supreme court's oft-cited statement that 'the goal of all litigation is to bring about judgment after trial on the merits,' it is highly unlikely that the Supreme Court would have used the language contained in Rule 5.04 if Rule 60.02 did not exist or was otherwise inoperable."


It remains to be seen whether district court judges are simply unclenching the teeth of the rule's trap until the rule is ubiquitous in practice, or whether judges are creating exceptions that entirely swallow the rule. The court of appeals will have the next word.

The impact of Rule 5.04 remains to be determined. If Rule 60.02 applies to Rule 5.04 motions, if liberally construed, it may eviscerate Rule 5.04. Alternatively, Rule 5.04 may be a "one-hit wonder" in the courts--get 15 minutes of fame but be applied as a true bar to delinquently filed claims, and then never resurface again. Assuming large exceptions are not created, the docket of district court Rule 5.04 cases may soon vanish and the one-year filing may become a standard practice.


Laura Moehrle is a shareholder at Quinlivan & Hughes, P.A. located in St. Cloud, Minnesota. Her practice focuses on medical malpractice and insurance defense litigation primarily in the area of motor vehicle accidents. Laura is the current Co-Chair of MDLA's Medical Malpractice Committee.

John Sullivan is an associate attorney at Quinlivan & Hughes, P.A. located in St. Cloud, Minnesota. He practices in civil litigation defense in the areas of medical malpractice and insurance defense litigation. John is a member of the MDLA's Medical Malpractice Committee and New Lawyers Committee.

Minnesota Supreme Court Extends UIM Excess Insurance Protection Coverage in Cases Where the Limit of the Policy for the Occupied Vehicle Exceeds the Limit of the Policy Under Which Excess Insurance Protection is Sought

Thursday, 06 August 2015

Wednesday, August 5th the Minnesota Supreme Court handed down a decision providing UIM "Excess Insurance Coverage" - UIM coverage beyond that provided by an occupied vehicle's UIM insurance.

Kenneth Bayliss Successfully Defended an Appeal in the Case of Klockmann v. County of Le Sueur

Tuesday, 23 June 2015

Kenneth BaylissQuinlivan attorney Kenneth Bayliss successfully defended an appeal in the case of Klockmann v. County of Le Sueur, a decision of the Minnesota Court of Appeals handed down on June 22, 2015.

The case involved landowners' claim that the county board's award of a conditional use permit was improper because it reversed an earlier decision. The landowners also contended that the decision was not supported by sufficient evidence and that the ordinance did not permit the use at issue. The Court of Appeals affirmed the county board on all grounds. It held that the county ordinance directly permitted the type of use at issue; that there was sufficient evidence in the record to support the board's decision; and that the board had the inherent right to revisit an earlier decision based on the presentation of additional evidence.

Big Win for Rajkowski and Holthaus - Supreme Court Rules In Favor Of Landowners

Wednesday, 04 March 2015

Michael Rajkowski Rachael Pressler

On March 4, 2015 the Supreme Court issued a ruling stating that utility companies must purchase a property in whole for fair market value if it constructs a 200KV or larger power line, and the line crosses any contiguous and commercially viable land. Quinlivan & Hughes' attorney Michael Rajkowski and Rachael Holthaus successfully argued on behalf of the clients Dale and Janet Tauer, who are owners of agricultural land that was slated to have a 200KV CAPX 2020 power line constructed across their property.

The utility, Great River Energy, argued that it should only have to compensate the Tauers for the easement needed to construct the power line, and no more. Rajkowski and Holthaus successfully argued that Great River Energy must purchase the property as a whole as elected by the Tauers. The Tauers made this election pursuant to Minnesota law, which seeks to protect agricultural landowners from utility companies that take their property for the use and construction of power lines.

"This is a big win for landowners", said Rajkowski. "No longer will they have to worry about a power line decimating the value of their property."

Defense Verdict: Minnesota Supreme Court Holds Defendant Must Pay ONLY Fair Share of Verdict

Wednesday, 10 September 2014

The Minnesota Supreme Court issued recently its decision in Staab v. Diocese of St. Cloud, holding that a defendant who is found to be 50% or less at fault cannot be ordered to pay more than its fair share of the total damages award.

In this case, a jury found the Defendant Diocese 50% at fault for the Plaintiff's injuries. The jury also found the Plaintiff's husband was 50% at fault, even though he was not a party to the lawsuit. Plaintiff argued the Diocese should be forced to pay 100% of the damages award under Minnesota's "reallocation" statute, arguing the judgment against the non-party husband was "uncollectible." Minn. Stat. Sec. 604.02 subd. (2). The Diocese argued it was severally, but not jointly, liable, and therefore could not be forced to pay more than its fair share (50%), regardless of whether the remainder of the judgment was collectible from the plaintiff's husband. The Minnesota Supreme Court agreed with the Diocese. A full copy of the court's opinion can be found here.

How this decision affects claim handling / evaluation: An at fault defendant who is found to be 50% or less at fault will only be required to pay in proportion to his or her percentage of fault. This is true regardless of whether the other tortfeasors are parties to the lawsuit. If you have a minimally (50% or less) at fault insured, your exposure for damages will be limited to the insured's percentage of fault. If, however, the insured is 51% or more at fault, the insured will be held "jointly liable" and could be responsible for up to 100% of the verdict.

The Diocese of St. Cloud was represented by Dyan Ebert, Laura Moehrle and Mike LaFountaine of Quinlivan & Hughes. If you have any questions about this decision, please give us a call: (320) 251-1414 or reach us by email: [email protected]; [email protected]; [email protected].

Quinlivan & Hughes, P.A is Proud to Announce the Election of Dyan Ebert as MDLA President

Tuesday, 19 August 2014

Dyan EbertShareholder Dyan J. Ebert was elected President of the Minnesota Defense Lawyers Association ("MDLA") at its annual meeting held in conjunction with the Association's Trial Techniques Seminar on August 15, 2014. The MDLA has over 750 members and is dedicated to serving the needs of lawyers engaged primarily in the defense and trial of civil disputes. In addition to becoming the MDLA President, Dyan also holds leadership positions in the Association of Defense Trial Attorneys, the Minnesota State Bar Association, and the Seventh District Bar Association. Dyan's practice is focused on employment and governmental liability, insurance coverage and general casualty law.

Quinlivan & Hughes, P.A. has a long history with the MDLA. Richard Quinlivan was a co-founder and first President of the Association (1974-75). Firm members Michael J. Ford (1992-93) and Steven S. Schwegman (2004-05) have also served as MDLA Presidents.

Schwegman serves as Faculty Member at IADC Trial Academy at Stanford Law School

Wednesday, 13 August 2014

Steve SchwegmanSteve Schwegman served on the faculty at the International Association of Defense Counsel (IADC) 42nd Annual Trial Academy at the prestigious Stanford Law School in Palo Alto, CA.

The IADC Trial Academy is one of the oldest and most respected programs for developing trial advocacy skills. The seven-day intensive program blends faculty instruction and demonstration with individual student participation.

The faculty consists of leading defense trial lawyers selected on a national basis from different regions of the country. Each faculty member is assigned to a group of five to seven students which allows for individualized attention and instruction. There were 98 student/lawyers from around the country as well as Brazil and Canada.

Quinlivan & Hughes, P.A. Elects Laura Moehrle Shareholder

Monday, 03 February 2014

Laura MoehrleQuinlivan & Hughes, P.A. is pleased to announce Laura A. Moehrle has been elected shareholder of the firm, effective January 1, 2014.

Laura practices primarily in the area of insurance defense litigation, including automobile liability and professional liability and also practices in the areas of premises liability, employment law and appellate law. She is a frequent presenter on issues related to automobile and professional liability. Laura was born and raised in St. Cloud, Minnesota

Changes to the Minnesota Statutory Short Form Power of Attorney

Thursday, 02 January 2014

John Wenker

by: John Wenker, Attorney at Law

In 2013, the Minnesota legislature approved a number of changes to the Minnesota Statutory Short Form Power of Attorney. Although the form appears similar to previous versions, it does contain a number of significant changes.

Notice to the Principal and Attorneys-in-Fact

For Powers of Attorney drafted as of January 1, 2014 and thereafter, the statutory form contains an Important Notice to Principal and an Important Notice to the Attorney-In-Fact. The Principal is the person who is granting the Power of Attorney and the Attorney-In-Fact is the person authorized to act on behalf of the Principal.

Important Notice to the Principal

Principal is giving broad and sweeping powers to the Attorney-In-Fact.

Actions by the Attorney-In-Fact will bind the Principal, heirs and assigns, or personal representative of the Principal's estate.

The powers given include granting the Attorney-In-Fact power to enter transactions even without consent or advanced notice from the Principal.

The power of the Attorney-In-Fact does not apply to health care directives.

States that the duties of the Attorney-In-Fact include the responsibility to keep complete records.

States that the Principal has the ability directly, or by naming another individual, to request periodic accountings.

The Attorney-In-Fact must provide accountings if the Attorney-In-Fact has been reimbursed for any expenditure made on behalf of the Principal.

The Attorney-In-Fact is personally liable to any person including the Principal, for injuries caused by action taken by the Attorney-In-Fact in bad faith under the Power of Attorney or by failing to account as required.

The Power of Attorney terminates upon court order if the Attorney-In-Fact does act improperly.

The Power of Attorney can be revoked by the Principal, terminating the power of the Attorney-In-Fact.

Divorce or separation will terminate the appointment of a spouse as an Attorney-In-Fact.

Important Notice to Attorney-In-Fact

The new form contains an Important Notice to the Attorney-In-Fact and includes the following information that the Attorney-In-Fact must:

Act with the interest of the Principal utmost in mind.

Exercise power in the same manner as an ordinarily prudent person of discretion and intelligence would do in the management of his or her own affairs.

Render an accounting as directed or whenever reimbursed for expenditures made on behalf of the Principal.

Act in good faith and in the best interest of the Principal, using due care, competence, and diligence.

Cease acting if the Attorney-In-Fact learns of any event that terminates the Power of Attorney.

Disclose the identity or disclose that the Attorney-In-Fact is acting as Attorney-In-Fact whenever acting on behalf of the Principal.

Acknowledging that the Attorney-In-Fact has read and understood the notice by signing the Power of Attorney.

That the Attorney-In-Fact is personally liable to any person including the Principal injured by actions taken by the Attorney-In-Fact in bad faith or by failing to account as required by the Power of Attorney.

The third article of the Power of Attorney was revised to change the reference regarding transfers to attorneys-in-fact to now specifically reference gifts to attorneys-in-fact. A Principal must decide whether to allow the Attorney-In-Fact to make gifts to the Attorney-In-Fact or to someone the Attorney-In-Fact has a legal obligation to support. If the Principal does decide to allow the Attorney-In-Fact to make such gifts, then the Principal must insert the name of the Attorney-In-Fact.


As of August 1, 2013, any "interested person", as defined under the Probate Code, can petition a court for review of an Attorney-In-Fact's actions, seeking an accounting of those actions. If such a court action occurs, the Principal and any person the Principal named as entitled to an accounting under the Power of Attorney, can recover attorney's fees if the court finds that the Attorney-In-Fact failed to provide the required accounting.

Acknowledgment of Notices

The Principal must now initial the Power of Attorney noting that the Principal has reviewed the Important Notice to the Principal. The Attorney-In-Fact must now sign an acknowledgment noting that the Attorney-In-Fact has read and understood the Important Notice to the Attorney-In-Fact. Although the signature of the Attorney-In-Fact does not need to be notarized, the Power of Attorney is not effective until the Attorney-In-Fact has signed the acknowledgment.

This article is intended to acquaint the reader with some general principles regarding changes to the Minnesota Statutory Short Form Power of Attorney. It is not intended to convey legal advice with respect to the reader's specific circumstances. The reader is therefore encouraged to call one of the attorneys who practice in the trust and estates group at Quinlivan & Hughes, P.A. if they have any questions regarding a Power of Attorney (320-251-1414).

Quinlivan & Hughes Attorney Kenneth Bayliss Prevails for Lake County on $5 Million Bond Claim

Friday, 06 December 2013

Kenneth BaylissOn December 5, 2013, the Minnesota District Court entered summary judgment for Quinlivan & Hughes client Lake County on a $5 million claim related to the sale of county revenue bonds. ORIX Public Finance, LLC, a Texas-based investment group, sued Lake County when Lake County could not perform on a bond purchase agreement.

The case arose out of Lake County's attempt to provide broadband internet services to its residents. The County obtained a $66 million loan and grant from the Rural Utility Service ("RUS") a federal agency, on the condition that it provide $3.5 million in matching funds-funds that would cover costs the federal loan and grant could not cover. The County planned to provide the matching funds by selling revenue bonds. The bond purchase agreement provided that the County would sell ORIX $5.6 million in revenue bonds at a very high (15%) interest rate.

As it turned out, the County could not sell the bonds and provide the matching funds in this manner because the RUS would not approve the financing on the terms stated in the bond purchase agreement. When the RUS would not approve the financing, the County decided to fund the match by taking money from its own reserves. ORIX then sued, claiming approximately $5 million in damages.

The case presented some interesting challenges. Ordinarily, the bond purchase agreement would contain language that would allow the County to back out of the agreement if the federal funds were not available. But a drafting error made this argument difficult. Additionally, the RUS, wanting to stay out of the fray, refused to state its position in writing or allow its employees to give depositions, a prerogative allowed by federal law.

The key to the defense of the case was the doctrine of "frustration of purpose," which applies when the fundamental purpose of a transaction has been frustrated so as to excuse a party from performing a contract. Lake County argued that there was no purpose to the bond transaction, given that without the federal funds there was no need for matching funds because there was nothing to match. ORIX argued that the RUS had never formally rejected the bond purchase agreement and that it was therefore entitled to $5 million in damages.

Alain Baudry and Maslon, Edelman, Borman & Brand LLP associated with Quinlivan & Hughes on the briefing. Quinlivan & Hughes attorney Kenneth Bayliss argued the case before Minnesota District Court Chief Judge Michael Davis on October 9.

Judge Davis's opinion found that the case was one where the doctrine of frustration of purpose applied. The decision first rejected ORIX's assertion that witness statements about what RUS representatives said in a key phone conference were hearsay. The court noted that the RUS statements about its rejection of the revenue bond financing were not hearsay, but "verbal acts" or "words of independent legal significance." The court went on to find that even if the statements were hearsay they would be admissible hearsay.

Worker's Compensation Insurance Coverage for Farmers - If your hired farm laborer looks like an employee, works like an employee, gets paid like an employee, you've probably got an employee!

Friday, 15 November 2013

Thomas ChristensonFarmers sometimes hire on farmhands or laborers when their operations grow. However, busy farmers may not consider the potential need for workers' compensation insurance coverage until someone gets hurt and medical bills, disability payments and other forms of compensation must be paid. Some may be surprised especially if the farmer hasn't needed to carry worker's compensation coverage in the past because only family members were working on the farm.

When things begin to change in your farm operation, review your insurance policies. A farm liability insurance policy will not cover injuries to a farm laborer who meets the Minnesota Workers' Compensation statutory definition of "employee." If a farm laborer sustains a work-related injury and the farmer has no Worker's Compensation coverage, the Minnesota Department of Labor & Industry (Special Compensation Fund) ("MN DOLI - SCF") may pay the workers' compensation benefits for the injured laborer and seek reimbursement directly from the farmer. The MN-DOLI & SCF may also seek to impose penalties on the farmer for failure to have workers' compensation insurance in place at the time the employee was injured. Minnesota statutes require qualified employers to purchase worker's compensation insurance coverage for their employees. Even a farmer is considered a qualified employer if the farming operation meets certain criteria.

If all employees on a farm earn less than $8,000 per calendar year, the Minnesota Workers' Compensation scheme doesn't require the farmer to carry worker's compensation insurance. According to Minn. Stat. § 176.041, subd.1(b), the Worker's Compensation Act doesn't apply to persons employed by a "family farm" as defined by Minn. Stat. § 176.011, subd.11(a)(1-2)(2010). However, if a farmer hires farmhands or laborers who earn (in aggregate) more than $8,000 annually, the farmer is required to carry worker's compensation insurance. Essentially, farmers are allowed one year to begin worker's compensation coverage once they employ qualified farm laborers making more than a total of $8,000 in a calendar year.

A recent case involved a family farmer who wanted to cut back his hours on the farm. He hired a farm hand to assist his son in running the crop farming operation. During harvest, a piece of equipment broke down. While driving back to the farm to get another machine, the truck that the farmer, farmer's cousin and the farm hand were riding in lost control and went off the road, causing all three serious injuries. The farmer didn't have worker's compensation insurance in place, and was a workers' compensation claim was brought for medical expenses and damages sustained by the farmhand. In a Worker's Compensation Court of Appeals decision, the WCCA held that the farmer was not required to carry such insurance as it was the first year he had hired a farm worker. The farmer avoided paying penalties and damages that would have been in the six figure range.

No one expects bad things to happen on their family farm, and certainly nobody is happy when they do. Be careful to check whether you need to add worker's compensation insurance coverage when hiring farmhand or laborer. You may avoid unnecessary fees, expenses and penalties imposed by the state.

First Annual Quinlivan & Hughes Tip-Off Tournament to be held at the College of St. Benedict

Thursday, 14 November 2013

The First Annual Quinlivan & Hughes Tip-Off Tournament will be held Friday November 15th and Saturday November 16th in Claire Lynch Gymnasium at the College of St. Benedict. Quinlivan & Hughes is a proud sponsor of Blazer athletics and wishes all players and coaches the very best in 2013-2014!

Minnesota Workers' Compensation Q & A - Test Your Knowledge

Friday, 18 October 2013

Thomas ChristensonQuinlivan & Hughes attorney Thomas J. Christenson has more than 30 years of workers' compensation experience. He invites you to test your Minnesota Workers' Compensation Law knowledge below.

What is workers' compensation in Minnesota?


Workers' compensation came into existence in 1913. Prior to that date, there was no workers' compensation law in Minnesota. If you were hurt on the job, you had to sue your employer in civil court and prove that the employer was at fault for causing your injury. Since 1913, all you need to establish is that you were hurt in the course and scope of employment and you are entitled to workers' compensation benefits. The benefits are limited to what is provided by the law on the date that you were injured.

What types of injuries are covered under workers' compensation in Minnesota?


Physical injuries are covered by workers' compensation in Minnesota. There are several different types of physical injuries that a person can sustain. The first type of injury occurs in a traumatic accident. As an example, if you are carrying a box and fall down and break your leg, it is easy to establish the injury happened at work. Another type of injury is referred to as a Gillette injury. A Gillette injury is one that occurs over a period of time as a result of repetitive work activity. For example, if you are a barrel maker and spend thirty years making barrels and one day your shoulder freezes up but you did not fall down and injury the shoulder on a specific date, you have a compensable injury based upon the repetitive work activity you performed causing the shoulder to lock up. A third type of injury is an occupational disease. Assume that you work around chemicals and later develop lung cancer caused by the chemical exposure. Your lung cancer would be covered by workers' compensation because of the chemical exposure at work which substantially contributed to your developing lung cancer. Consequential injuries are also covered under the Minnesota Workers' Compensation Law. Consequential injuries occur if you have a back injury which causes you to limp resulting in the development of leg pain. In such a circumstance, both your back and leg injury are covered by workers' compensation because the leg pain developed as a consequence of the back injury. Finally, if you sustain an injury while treating for a work-related injury, the injury would also be covered. As an example, if you are treating for a back injury and get into a car accident while going to the doctor to treat for the work-related injury and break your arm, both your back and arm injuries would be covered under the Minnesota Workers' Compensation Act.

Are stress-related claims covered under workers' compensation in Minnesota?


Effective October 1, 2013, employees in Minnesota diagnosed with PTSD (Post-Traumatic Stress Disorder) caused by an incident at work will be covered for workers' compensation benefits. The change in law recognized that mental-injuries, injuries without any physical injury are covered. Prior to the change in law, mental injury could result in a compensable claim if it was caused by a physical injury, such as depression caused by a back injury, or if it resulted in a physical injury like a police officer developing an ulcer caused by the stress on the job. The PTSD diagnosis must be made by a licensed psychiatrist or psychologist. Stress caused by work place actions such as discipline, lay-offs or terminations are not covered under the new law.

Who can file a workers' compensation claim in Minnesota?


Only employees are entitled to workers' compensation benefits. An employee is someone who works for a business entity or an individual for pay. Certain types of employment situations are not covered. If you are an independent contractor, you are not covered for workers' compensation. If you are a corporate officer, such as a vice president of a corporation, you are not covered unless you have specifically elected to be covered for workers' compensation coverage. Also, if you are a family member working for your mom, dad, brother or uncle, you are not covered unless there is a specific election to cover family members for workers' compensation benefits. Also, if you are farm laborer, you generally are not covered. Volunteers may or may not be covered depending on the specific factual circumstances surrounding their employment.

Can I receive workers' compensation benefits if I re-injury a pre-existing condition?


If you injure a pre-existing condition in a work incident, you may be covered by workers' compensation. In order to have a valid workers' compensation, the work injury to the pre-existing condition has to be a substantial contributing factor. In other words, the work injury does not have to be the sole factor or even a primary factor, only a substantial contributing factor. If you have a pre-existing low back condition and while lifting a box at work, develop back pain, workers' compensation should cover the injury because the work activities substantially aggravated your pre-existing back condition.

How do I tell my employer that I was hurt on the job?


In Minnesota, injured employee must notify the employer of a work-related injury in a timely manner. The report should be made in writing but in the modern world, notice could be made by email, voicemail or text message. The notice should be made to someone in a supervisory position such as your supervisor or in the human resources department. The notice should include the specific detail of how you were injured. Once you report the incident to your supervisor, the supervisor should advise the appropriate human resources individual, who then should complete a First Report of Injury for forwarding to the workers' compensation insurance carrier. If your employer refuses to file the claim, you should contact the Minnesota Department of Labor and Industry and personnel there will assist you in filing the claim.

Cally Kjellberg-Nelson receives the MDLA's Deb Oberlander Award

Tuesday, 27 August 2013

Cally Kjellberg-NelsonQuinlivan & Hughes' attorney Cally Kjellberg-Nelson is the recipient of the 2013 Deb Oberlander Award from the Minnesota Defense Lawyers Association (MDLA). The award, created in memory of MDLA's former executive director who passed away in 2008, recognizes the professionalism, service, and contribution to excellence in the practice of law by a new lawyer. Cally served as the Vice Co-Chair of the MDLA's New Defense Lawyers Group (2011-2012) and Co-Chair (2012-2013). Cally has also been involved with the Mid-Winter Conference Planning Committee (2012 and 2013), as well as with the Association's 50th Anniversary Celebration held in conjunction with the Trial Techniques Seminar and the Trial Academy Planning Committee (2013). Cally is published in Minnesota Defense Magazine, "Laches, A Defense That Is Alive and Well in Minnesota", Minnesota Defense Magazine | Spring 2010, and recently presented at the 2013 MDLA Trial Techniques Seminar on the recently amended Rules of Civil Procedure.

In addition to her MDLA activities, Cally has also been active in the Stearns/Benton Bar Association, the Seventh District Bar Association, and the Minnesota State Bar Association. She also serves as the Central Chapter Liaison to the Minnesota Women Lawyers Association (2012-2014).

We congratulate Cally on this well-deserved honor!

Shareholders make top lawyers list

Wednesday, 17 July 2013

Steve Schwegman Dyan Ebert Jim McAlpineQuinlivan & Hughes, P.A. would like to congratulate shareholders Steven R. Schwegman and Dyan J. Ebert on their selection as 2013 Minnesota Super Lawyers and shareholder James S. McAlpine on his selection as a 2013 Minnesota Rising Star.

Comprised by Thomson Reuters, the Minnesota Super Lawyer list recognizes the top 5% of lawyers in the state while the Rising Star list recognizes the top 2.5% of lawyers in the state under age 40.

Rajkowski successful in argument before the Minnesota Supreme Court in CapX2020 high-voltage transmission line matter

Thursday, 30 May 2013

Michael RajkowskiQuinlivan & Hughes attorney Michael Rajkowski successfully argued before the Minnesota Supreme Court in the CapX2020 high-voltage transmission line matter that landowners are entitled to relocation costs and minimum compensation. The decision overturns a Court of Appeals decision and affirms the ruling by Stearns County District Court Judge Frank Kundrat.

The case involves landowners who invoked the Buy the Farm statute, which allows homeowners and farmers to force a utility to purchase their entire property at fair market value rather than selling an easement to the utility. Judge Kundrat previously ruled that the homeowners who invoked the Buy the Farm statute were entitled to relocation costs and minimum compensation. A three-judge panel of the Court of Appeals, however, reversed that decision, in a 2-1 vote. Court of Appeals Judge Edward Cleary dissented, writing that the landowners essentially were forced from their property by an involuntary taking by CapX and that they were entitled to the compensation and relocation costs.

The Supreme Court decision overturned that Court of Appeals decision agreeing with Judge Cleary's dissent. The Supreme Court's decision can be found.

DSC00576Has the government taken a condemnation / eminent domain action against you? Know your rights and protect your investment. Contact the Quinlivan & Hughes Condemnation and Eminent Domain team today!

Quinlivan & Hughes P.A. is pleased to announce the association of Rachael R. Holthaus

Wednesday, 22 May 2013

Rachael PresslerRachael Holthaus was born and raised in the St. Cloud area. She was admitted to the Minnesota Bar in May 2013 and joined the firm as an associate at that time. She received her B.S. from the University of Wisconsin-River Falls (Business Administration with a Minor in Spanish) in 2009 and her J.D. from William Mitchell College of Law in 2013. While in law school, Rachael worked as a law clerk at Acumen Legal Advisors, PLLC where she assisted in business law and real estate matters. She also externed at Hennepin County District Court and was a research assistant for Professor John O. Sonsteng. Rachael was also involved in William Mitchell's moot court competition where she competed in the New York Bar Association National Competition.

Dyan J. Ebert Invited to Join Association of Defense Trial Attorneys' Executive Council

Thursday, 25 April 2013

Dyan EbertDyan J. Ebert has been invited to become a member of the Association of Defense Trial Attorney's Executive Council. She will be one of nine council members selected from the United States and Canada to serve on the Council. The ADTA limits membership to one prime member with at least 5 years of experience in civil trial defense for every million in population. John Quinlivan who recently passed in September 2012 served as the Association's President from 1981-92. Dyan has been an associate member under John Quinlivan and assumed his prime membership after he retired from practice.

Quinlivan & Hughes P.A. is pleased to announce the association of Jolene R. Schley

Tuesday, 12 March 2013

Jolene SchleyJolene Schley was born and raised in the St. Cloud area. She was admitted to the Minnesota Bar in May 2006 and joined the firm as an associate in February 2013. She received her B.A. from The College of St. Benedict (Political Science) in 2002 and her J.D. from the University of St. Thomas School of Law in 2005. Prior to joining Quinlivan & Hughes, Ms. Schley was Legal/Compliance/Credit Administration Officer at Maple Bank in Champlin. Jolene practices in the areas of Business and Corporate Law, Wills, Probate Estate Planning, Trusts and Real Estate.

Changing the Way We Litigate Minnesota Cases -- Major Civil Rules Changes Effective July 1

Wednesday, 06 February 2013

The Minnesota Supreme Court has just handed down some major revisions to the civil rules (found HERE). These changes will result in some significant changes in the way our civil cases are handled. The changes were just handed down yesterday and will be effective July 1, 2013. The issues of most concern to claims handlers have been summarized in the five numbered points at the end of the article.

1.) The amendments may limit the use of pocket service by Plaintiffs by providing that actions must be filed with the court within one year of service or they are automatically dismissed. Plaintiffs may be less willing to use pocket service if their case can be dismissed and would have to be refiled-statute of limitations issues might come into play. No actions will be dismissed until July 1, 2014, so the bar gets a year to figure this out.

2.) Rule 26 is substantially rewritten and "federalized." An initial disclosure requirement is added and requires parties to automatically disclose such things as: the names of witnesses with knowledge of discoverable information; any relevant documents; an itemization of damages with supporting information made available for inspection; and disclosure of insurance information. These disclosures are due for both parties 60 days from the original due date of the answer.

3.) Absent a provision in a scheduling order, expert disclosures are required 90 days before trial with a 30 day provision for rebuttal disclosures.

4.) Pretrial disclosures must be made 30 days before trial, including witness identity and contact information, identification of deposition testimony, and identification of all exhibits. Parties must object to others' pretrial disclosures within 14 days or any objections are waived.

5.) Rule 26.02 begins with an express statement that "proportionality" is the guiding concept in determining the proper scope of discovery. This concept limits the general rule providing for the discovery of any evidence that is relevant to the claim or defense of a party. This gives parties an opportunity to not disclose relevant evidence and hide behind the vagueness of "proportionality."

6.) As in federal court, the parties are required to conduct a "discovery conference." This conference is required to be held 30 days after the date the answer is originally due. The parties must prepare a "discovery conference report."

7.) Rule 37.04 is amended to provide that evidence not disclosed as required by the rules will be excluded, unless the non-disclosure was substantially justified or harmless.

8.) The rule abolishes the information statement, modifies use of the certificate of representation, and creates a "Civil Cover Sheet" that must be filed with any new lawsuit. The Civil Cover Sheet is based on a form available on the court system website. Scheduling information will be submitted as part of the Civil Cover Sheet. Importantly, parties have only ten days to respond to the Plaintiff's Civil Cover Sheet-so the Civil Cover Sheet would appear to be due ten days before a Defendant's Answer is due. While the rule permits the court to wait until 90 days after the date the last Civil Cover Sheet is due (and thus take into account the discovery conference report mentioned above), it also allows it to immediately enter a scheduling order at the point the last Civil Cover Sheet is due. This may give rise to bitter early wranglings over scheduling.

9.) Rule of General Practice 115.04 is amended to provide a process whereby judges can hear civil motions through an informal process involving letters and conference calls.

10.) Rule 1 is also amended to include a statement requiring the courts to consider "proportionality" in the handling of all cases. In a world of diminishing court resources, this could give the courts the opportunity to significantly cut back on the resources devoted to civil cases. -But only time will tell on this point.

These are huge changes. They will alter the way we handle even the simplest cases. I see more convenience for the courts, but little in the way of savings for litigants.

For claims handlers, insurers, and trusts, here's my assessment as to the significance of these changes:

1.) The limitation on pocket service cases-dismissal after one year-will likely result in more matters being filed and not just pocket served.

2.) The use of the civil cover sheet and the requirement of a response within ten days will require that in cases where the plaintiff filed a civil cover sheet that counsel be retained immediately so that a responsive civil cover sheet can be filed within ten days. The service of a complaint will trigger obligations that cannot be easily extended without leave of court. The court may even issue scheduling provisions requested by the Plaintiff before an attorney for the defendant has even been retained.

3.) The amendment of Rule 26.02 to include an express "proportionality" requirement will likely give rise to more discovery disputes. This is particularly true until the courts hand down some appellate cases explaining application of the proportionality factors.

4.) The processing of cases will be more formal and will require a different and somewhat more straight-jacketed workup.

5.) The parties will have more conferences early on to put in place agreements regarding the use of discovery.

These rule changes are the result of the recommendations of the Minnesota Supreme Court's Civil Justice Reform Task Force. The report and recommendation of the Task Force was circulated and the Supreme Court held a hearing on the recommendations before deciding to implement these changes. While the Courts were certainly a big part of the discussion and recommendations that were made, civil practitioners from a wide range of practice areas also participated and provided input on ways to improve the civil justice system to add increases in efficiencies and to resolve disputes more economically. There are some aspects of the rules that could lead to efficiencies, but it would also seem that the rules do add some additional steps to the litigation process.

The Supreme Court Makes its Decision on Dog Bite Law in Anderson v. Christopherson

Friday, 09 November 2012

On September 27, 2009, Gordon Anderson was walking his dog, Tuffy, past Dennis Christopherson's house. As the two walked past the home, Bruno, a dog owned by Mr. Christopherson's son, Neil, picked Tuffy up in his jaws and would not release him. While Anderson was attempting to separate the dogs, he fell and broke his hip.

Anderson brought suit against Dennis and Neil Christopherson under claims of negligence and strict liability pursuant to the dog-owner's liability statute. The district court relied on the holding in Mueller, and determined that in order for the statute to apply, the dog's conduct must be "focused" on the injured party. Accordingly, the district court found that, as a matter of law, Minn. Stat. § 374.22 did not apply because Bruno's focus was on Tuffy, instead of Anderson.

The Minnesota Court of Appeals' Decision
On appeal, the Minnesota Court of Appeals confronted two issues: whether Bruno's exclusive focus on Tuffy at the time of the attack prohibited the application of the dog-owner's liability statute and whether Dennis Christopherson was "harboring" Bruno within the meaning of the law. Anderson v. Christopherson, 802 N.W.2d 832, 834 (Minn. Ct. App. 2011).

Relying partially on the holding in Boitz that the phrase "attacks or injures" means that injuries caused by a dog "outside the scope of a vicious attack" warrants protection under the statute, the Court determined that the dog-owner's liability statute may apply to situations where a dog injures a person who was not the focus of the dog's actions. Id. at 835. The Court based its decision, in part, on the argument that relying on a dog's "focus" introduced a subjective element into the strict liability statute that would warrant an analysis of determining where the dog was directing his or her attention at the time of the attack. Id. at 836. The Court specifically noted that it "disagree[s] with the language in Mueller v. Theis, 512 N.W.2d 907 (Minn. Ct. App. 1994) that arguably added a requirement that the dog must also be "focused" on the injured person in order for the person's injuries to be the direct and immediate result of the dog's conduct." Id. at 837. In addition, the Court noted that the phrase "or injures" in the statute negated the requirement that a dog must always be focused on the injured party. Id. at 836. Rather, by including this phrase in the statute, the Court noted that the legislature intended the law to include a "dog's affirmative but nonattacking behavior which injures a person who is immediately implicated by such nonhostile behavior." Id. (citing Lewellin v. Huber, 465 N.W.2d 62, 64 (Minn. 1991)).

The Court also analyzed whether Christopherson would be relieved of liability because the chain of events between the dog's actions and the injury was too attenuated, as articulated in Lewellin. Id. at 837. The Court held that in this case, the chain of events connecting Bruno's behavior to Anderson's injury was an affirmative act that triggered Anderson's response which, in turn, immediately resulted in his injury. Id. Because the ultimate question in this case now turned on a question of fact-the proximate cause of Anderson's injury-the court of appeals remanded the case to the district court to determine whether Anderson's injury was the "direct and immediate result" of Bruno's behavior. Id. at 838.

In addition, the Court concluded that the district court's reliance on definitions of "harboring" and "keeping" where inaccurate interpretations of the terms. Id.Consequently, it also remanded to the district court the question of whether Dennis Christopherson could be considered to be "harboring" or "keeping" Bruno within the meaning of the law. Id.

The Minnesota Supreme Court's Decision
In its opinion dated July 18, 2012, the Minnesota Supreme Court affirmed the Court of Appeals' decision and remanded both issues to the trial court. Anderson v. Christopherson, 816 N.W.2d 626, 632 (Minn. 2012). In the majority opinion written by Justice Page, the Court and reasoned that under Lewellin, the issue to analyze was not whether Bruno's "focus" was on Mr. Anderson, but rather whether Bruno's actions constituted an affirmative act that was the proximate cause of Mr. Anderson's injuries. Anderson, 816 N.W.2d at 631. Essentially, the majority found that the situation at hand was distinguishable from Lewellin. Id.

Applying this test to the facts in this case, the Court concluded that because reasonable minds could differ in concluding whether Mr. Anderson's injuries were the direct and immediate result of Bruno's actions, it was a question of fact for the jury. Id. at 631-32. Specifically, the majority reasoned that there were three possible inferences that could be found:

(1) that the attack on Tuffy caused Anderson's fall and injuries; (2) that the attack on Tuffy caused Anderson to intervene to protect Tuffy, resulting in the fall and injuries, with Anderson's intervention being the direct and immediate response; or (3) that the attack on Tuffy caused Anderson to respond but broke the chain of causation.

Id. at 632.

For the second issue of whether Dennis Christopherson was liable as an "owner" under Minn. Stat. § 347.22, the majority relied on the definitions of "harboring" and "keeping" articulated in Verrett v. Silver, 309 Minn. 275, 277, 244 N.W.2d 147, 149 (1976). Specifically, the Court found that a jury could reasonably find that Dennis Christopherson was "harboring" or "keeping" Bruno by enabling his son to keep Bruno at his home. Anderson, N.W.2d at 633. The Court noted that Neil Christopherson had permission to bring Bruno to his parents' home in Andover and that they had discussed rules for Bruno's behavior while staying at the home. Id. at 633-34. Accordingly, the Court concluded that whether Dennis Christopherson fell into the definition of a "harborer" or "keeper" of Bruno was again a fact question for the jury. Id.

Chief Justice Gildea, who was joined by Justice Dietzen, wrote the dissenting opinion relating solely to the issue of whether the Christophersons where liable under the "attacks or injures" portion of the statute. Id. at 634. Chief Justice Gildea reasoned that Mr. Anderson's decision to intervene in the tussle between Tuffy and Bruno was similar to the facts under Lewellin and was enough to make the chain of causation too attenuated to establish liability. Id. at 634-35. Specifically the she noted:

Creating liability for a dog owner not only when his dog directly and immediately injures the plaintiff, but also when the plaintiff is injured because the plaintiff decided to respond to the dog's actions, is not contemplated by the statute and is inconsistent with our case law.

Id. at 636.

Chief Justice Gildea argued that the majority's finding that there was a possibility of liability under this portion of the statute for Neil Christopherson was effectively overruling Lewellin without the proper basis to do so. Id. at 635.

Tom Christenson and Garin Strobl are affirmed by the Workers' Compensation Court of Appeals

Monday, 29 October 2012

Thomas ChristensonOn October 22, 2012, Quinlivan & Hughes, P.A. attorneys Tom Christenson and Garin Strobl were affirmed by the Workers' Compensation Court of Appeals. Mr. Christenson and Ms. Strobl represented the employer and insurer in a case involving an employee who alleged that she suffered significant permanent injuries after a four-year-old child bumped into her during school. The Compensation Judge adopted the expert opinion of the employer/insurer and found that the injuries that employee sustained from the incident had resolved by April 23, 2010. The employee subsequently appealed.

In their appellate brief, Mr. Christenson and Ms. Strobl successfully argued that the Compensation Judge was entitled to determine the validity of conflicting medical evidence under Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Further, they argued that it was irrelevant that the employee had a larger number of medical providers who found evidence of an ongoing injury related to the underlying accident. Finally, Mr. Christenson and Ms. Strobl argued that their expert's categorization of the injury did not tarnish the foundation of his opinion.

The Workers' Compensation Court of Appeals agreed and stated that the doctors "choice of words may have minimized that force of the injury, but the essential description of how the injury occurred is not significantly different from the description of the incident." Because the employer's/insurer's expert took a history from the employee, physically examined her, and reviewed her medical records prior to giving his opinion, the Workers' Compensation Court of Appeals affirmed the Compensation Judge's decision that he had adequate foundation on which to base his opinion, regardless of the multitude of experts who opined that the employee's injuries from the incident were permanent.

Finally, the employee argued that the Compensation Judge failed to comment upon the credibility of the employee when he rendered his decision. Mr. Christenson and Ms. Strobl again successfully argued that a comment on the employee's credibility was irrelevant to the Compensation Judge's decision to adopt the expert opinion of the employer/insurer.

CapX2020 Eminent Domain

Thursday, 27 September 2012

CapX2020 Project

CapX2020 is a joint initiative of 11 transmission-owning utilities in Minnesota, North and South Dakota, and Wisconsin to expand the electric transmission grid. CapX2020 will follow the I-94 corridor and will use eminent domain, the taking of private property for the public good, as it is needed. The high voltage lines are expected to be constructed and transmitting electricity by 2014.

Where the line is going
The CapX2020 power line will cross through the St. Cloud area in two phases. The first phase includes private properties between Monticello and St. Cloud and the second phase includes private properties between St. Cloud and Fargo.

Monticello to St. Cloud
The route for the Monticello to St. Cloud phase has already been determined, and a "take date" of February 22, 2011 has been set. An interactive map of this route can be found here:

St. Cloud to Fargo
UPDATE 06/10/2011: The Public Utilities Commission unanimously approved Administrative Law Judge Beverly Jones Heydinger's recommended route for a high-voltage power line from St. Cloud to Fargo, a segment of a $1.7 billion project that is one of the largest expansions of the power grid in Minnesota. The St. Cloud-to-Fargo segment will mostly follow Interstate 94, except for a diversion on a section between St. Cloud and Sauk Centre.

UPDATE 05/20/2011: Stearns County Judge Frank J. Kundrat ruled in favor of Quinlivan & Hughes attorney Michael C. Rajkowski and his client on a CapX2020 matter. Our client elected to require CapX2020 to buy their home, because power lines will be on their property. CapX2020 took the position that our client did not qualify for the additional benefits of a full take under the statute, because they were not "forced" to leave their home. Judge Kundrat agreed with attorney Rajkowski and ruled that CapX2020 must make the full take and compensate our client accordingly.

To discuss this ruling further or to inquire about your rights under eminent domain law, contact Mike Rajkowski at (320) 251-1414.

UPDATE 04/26/2011: An administrative law judge has recommended routing a Fargo-to-St. Cloud high-voltage power transmission line away from the Interstate Highway 94 corridor once it approaches Freeport and then south of Avon Hills and St. John's University before it heads east to St. Cloud. Administrative Law Judge Beverly Jones Heydinger's recommendation on where to put the line will be sent to the Public Utilities Commission, which is expected to make a decision this summer on the location of the line. The route Heydinger preferred costs about $1.4 million more than the route preferred by Xcel and Great River Energy, and it heads farther south than their preferred route. Heydinger's decision came after public input sessions and testimony from organizations and residents who would be potentially affected.

Judge Beverly Jones Heydinger's Recommended Route

Protect your rights
Whether a utility is planning to take all or only a portion of your property, it is important to have an independent appraisal done before you sign your name to any agreement. Your property is an investment, and the addition of an unsightly power line pole or the loss of a freeway tree buffer could impact the value of your property significantly.

Hiring an Attorney
It is important to remember that public utilities are a business. Overall profitability relies on keeping costs, including what is paid in eminent domain settlements, as low as possible. If your property is going to be taken and the utility offer price is significantly lower than your independent appraisal, you should protect your property investment and hire a reputable eminent domain attorney.

Why Hire Quinlivan & Hughes?
Attorney Keith Hughes has nearly 40 years of experience helping clients with Eminent Domain matters. His partner Michael Rajkowski adds another 10 years of experience. Together, Keith and Mike can help guide you through the process of property condemnation and help insure that you are receiving fair compensation for your property.

How Are Eminent Domain Attorneys Paid?
Eminent Domain Attorneys are paid 2 ways, hourly or on a contingent basis. If you choose to pay hourly, you will pay the attorney only for the time he works on your file. If you choose to pay on a contingent basis, you will only pay your attorney a percentage of the final award, and nothing until that occurs. Individual circumstances may find either option a better choice.

In Minnesota, state law provides for full attorney reimbursement by the utility if the court award is 40% more than their (the utility's) final written offer. If the court award is 20% to 40% more than the utilities final written offer, attorneys fees can still be paid by the utility at the discretion of the court.

Our mentor and friend John Dennis Quinlivan has passed away

Thursday, 27 September 2012

John QuinlivanJohn Dennis Quinlivan
1936 - 2012

Quinlivan & Hughes is sad to announce the passing of our mentor and friend, John Dennis Quinlivan, who died September 4th, 2012 at the age of 76.

John was born to Ray J. and Elizabeth (Ryan) Quinlivan on May 22, 1936 in St. Cloud. John served in the United States Army from 1955 to 1957. On August 19, 1961 he married Shannon Rorabeck at St. Catherine's Catholic Church in Redwood Falls. John attended St. Cloud State University, and graduated from William Mitchell College of Law (LL.B., 1968). He joined the Quinlivan Law Firm in 1968 and was admitted to the Minnesota State Bar Association the same year. John was a member of the Stearns/Benton County Bar (President, 1972), Minnesota Defense Lawyers Association (Secretary, 1973-86), Seventh District Bar (President, 1975), Association of Defense Trial Attorneys (President, 1981-82), Defense Research Institute (Board of Directors, 1986-89), Board of Trustees-William Mitchell College of Law (1988-91). John was committed to his community; he served on the St. Cloud Chamber of Commerce Board of Directors from 1983-1986, St. Cloud Sertoma Club (President, 1974-1975), and Cathedral High School Board of Trustees from 1979-1985.

John was an active member and volunteer at St. Paul's Church and school, St. Cloud Hospital and St. Scholastica Convent. He was an avid sports fan, enjoying the local high school and collegiate teams especially Johnnie Football. John was dedicated to his daily routine of emailing friends, going to coffee groups and daily reading of the newspapers. Most of all, John loved his family and grandkids, who were the loves of his life. John's wonderful sense of humor and great story-telling abilities will be dearly missed.

John is survived by his loving wife of 51 years, Shannon; children, Kevin of Mound, Barry of St. Cloud, Sr. Colleen Quinlivan, OSB of Ridgely, MD, Curran (Joy) of Lincoln, NE, Molly (Paul) Schmitz of Woodbury; grandchildren, Lauren, Meghan, John, Reece, Brady, Brennan, Liam, Sean, William, Timothy; great-grandson, Jaxon; siblings, Dennis of Yankton, SD, and Mary Quinlivan of Arden Hills.

John was preceded in death by his parents; brothers, Roger, Richard, Robert; and nephew Tim Quinlivan.

The Quinlivan family is grateful to the St. Cloud Hospital staff for their loving and personalized care.

Memorials are preferred in lieu of flowers to Cathedral High School or the Benedictine Sisters of Ridgley, MD.

Robert Cunningham saves client approximately $1.8 million in taxes

Wednesday, 26 September 2012

Quinlivan & Hughes tax attorney Robert Cunningham just concluded the 3-year process of representing his client in a tax dispute against the IRS. Mr. Cunningham successfully appealed the client's IRS audit to the U.S. Tax Court, ultimately saving his client approximately $1.8 million in taxes.

Mr. Cunningham practices in the area of Tax Law, Creditor Remedies, Business and Corporate Law, Business Succession and Estate Planning.

Mike LaFountaine Successfully Defends Homeowners in Case Involving Guest's Fall From Terrace

Wednesday, 26 September 2012

Mike LaFountaineOn May 9, 2012, Quinlivan & Hughes attorney Mike LaFountaine obtained a defense verdict for his clients in a case involving a fall from a terrace. The case was venued in Alexandria, Douglas County, before Judge Ann Carrott.

The accident that was the subject of the lawsuit happened on July 25, 2009, when the 33-year-old male Plaintiff fell while on the Defendants' property. The accident happened as Plaintiff was playing with children during a family reunion. As Plaintiff ran from children with squirt guns, he ran through a planting area with shrubs that, according to Plaintiff, obscured a terrace wall and a drop off of approximately ten feet. Plaintiff landed on a concrete patio at the base of the terrace. Plaintiff claimed the terrace wall was unguarded and contained no warnings. Plaintiff also claimed he did not see the terrace wall before running through the shrubs. Violations of various building codes were alleged.

Plaintiff suffered injuries to his feet, including heel fractures and ankle injuries requiring the placement of metal hardware.

The jury concluded that Plaintiff was 55% at fault and that Defendants were 45% at fault. Because Plaintiff's fault was greater than that of Defendants, Plaintiff recovered nothing.

Plaintiff's liability expert was Robert Euteneuer. Defendants' liability expert was Charles Lane.

After the verdict the case was voluntarily dismissed by Plaintiff without any appeal in exchange for the Defense's agreement to waive its costs and disbursements.

Favorable Ruling from the Minnesota Supreme Court in Staab v. Diocese of St. Cloud

Wednesday, 26 September 2012

Mike LaFountaine Dyan Ebert Laura MoehrleQuinlivan & Hughes attorneys Michael D. LaFountaine, Dyan Ebert, and Laura Moehrle recently received a favorable ruling from the Minnesota Supreme Court in Staab v. Diocese of St. Cloud. The decision, handed down by the Supreme Court on April 18, 2012, holds that a tortfeasor who is 50% or less at fault pays only that percentage-even if the remaining fault was placed on a tortfeasor who was not a party to the action. This is a landmark decision which supports the principle that defendants should only be liable for their own fault and should not be required to pay percentages of fault attributable to others.

Michael LaFountaine Obtains Result Greatly Limiting Damages

Wednesday, 26 September 2012

Mike LaFountaineMichael LaFountaine started 2012 with a trial in Long Prairie before Todd County Judge Jay Carlson. Mr. LaFountaine represented the driver of a vehicle that was in the passing lane when the vehicle being passed turned left into a driveway. The driver and passenger of the vehicle that was turning left both sued Mr. LaFountaine's client and asked the jury for more than 1.2 million dollars.

The jury placed fault on both drivers, but determined that the total damages payable to the Plaintiffs will amount to something between $27,000 and $43,000 for the driver (depending upon post trial motions) and $10,000 for the passenger.

Minnesota Counties Intergovernmental Trust (MCIT) Publishes Booklet on Governmental Immunities for Member Counties Authored by Attorney Ken Bayliss

Wednesday, 26 September 2012

Kenneth BaylissQuinlivan & Hughes attorney Kenneth Bayliss, long a student of issues relating to governmental immunities, has had a booklet on immunities circulated to local governments. The Minnesota Counties Intergovernmental Trust (MCIT) recently made his booklet, a comprehensive summary of immunities, available to Minnesota local governments.

Mr. Bayliss comes by his interest in governmental immunities naturally, having spent the first ten years of his career in the Tort Claims Division and the Employment Law Division of the Minnesota Attorney General's Office.

Ken's current practice involves litigation concerning government liability, general insurance defense, premises liability, construction accident liability, and business litigation. He is a past chair of the Minnesota State Bar Association's Civil Litigation Section and of the law firm's Insurance Defense Group. He is the current chair of the firm's Appellate Practice Group.

Our colleague and friend Michael Joseph Ford has passed away

Thursday, 20 September 2012

Mike FordMichael Joseph Ford
1948 - 2012

It is with great sadness that Quinlivan & Hughes announces the passing of our colleague and friend, Michael Joseph Ford, who died unexpectedly of a heart attack on Sunday June 17, 2012.

Mr. Ford started with the firm in 1979 and had been a shareholder since 1987.