Great West, 548 N.W.2d at 281 (emphasis added). The majority opinion also charts new legal ground in determining no-fault medical expense benefits by using common law tort principles to modify the No-Fault Act. It supports its rationale by citing Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271 (Minn.1995), which decided what general and special damages were in the context of an age and disability claim, Leubner v. Sterner, 493 N.W.2d 119 (Minn.1992), which was a medical malpractice claim, and Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 58 N.W.2d 561 (1953). The majority then summarily distinguishes medical expenses from those caused by previous nonauto accidents from those caused by the more recent auto accident even though it is undisputed that the auto accident aggravated a chronic preexisting condition and the insured suffered a compensable loss. To shore up its reasoning, the majority opinion then gives an example of two separate injuries, one to one's foot caused by a horse-riding accident and another to one's shoulder caused by an auto accident. However, that example is not helpful because it obviously does not involve an aggravation of a preexisting injury, nor does it support a distinction between auto and nonauto-related accidents when the later injury was a compensable loss under the No-Fault Act. In this case, the record indicates that we do not have two different injuries but rather *560 the aggravation of a preexisting injury resulting from an auto accident.[10] As in Great West, the entire responsibility for the insured's disability caused by the accident occurred while State Farm was on the policy. State Farm accepted Pususta as an insured with whatever physical condition she may have had at the time and it is not for State Farm now to either refuse payments of benefits for that portion of disability caused by the previous injury or to seek subrogation. See Great West, 548 N.W.2d at 281. Importantly, once a compensable loss occurs, the No-Fault Act does not contain equitable apportionment of medical expense benefits nor have we previously recognized a common-law right to seek apportionment of medical expenses based on a preexisting condition in the no-fault context. If we disallow subrogation of medical expense benefits between two insurance companies based on the one-accident principle, (that is, the last accident for purposes of the No-Fault Act), that is all the more reason to apply that same legal principle to prohibit insurers from attempting to offset, allocate or seek apportionment of medical expense benefits from their insureds. The No-Fault Act was not designed to pit an insurer against its insured for these basic medical benefits but rather to encourage swift, inexpensive rights to claim the benefits, without regard to fault or apportionment. Minn. Stat. § 658.42. The majority opinion will require more expert testimony of all the parties whenever a preexisting condition exists. This will only lead to more expenses, delays and disputes over these basic benefits. The No-Fault Act was designed to remove these subjective disputes to insure PIP coverage in exchange for removing the injured's right or necessity to have to sue for those types of benefits prior to no-fault coverage. See Minn. Stat. § 65B.51, subds. 1, 3 (2000). In that the legislature did not provide for apportionment, it is not for this court to make up an additional distinction for entitlement to PIP benefits, based on injuries "within the no-fault system and some medical expenses arising outside that system." The No-Fault Act has already provided a standard to determine medical expense benefits: " * * * all reasonable expenses for necessary * * * medical, * * * and rehabilitative services * * *." Minn. Stat. § 65B.44, subd. 2. We should continue to abide by this standard and our "one accident" precedent rather than create judicial modifications of the No-Fault Act. The legislature is the policy-making branch better suited to make these fine distinctions. I would therefore affirm. NOTES [1] Minn. Stat. §§ 65B.41-.71 (2000). [2] The other two factors are whether an act of independent significance broke the causal link between the vehicle use and the injuries, and what type of use of the auto was involved. Klug, 415 N.W.2d at 878. [3] The dissent acknowledges that there was conflicting medical testimony regarding the nature of Pususta's injuries. Our practice in no-fault arbitration cases is to defer to the factfinder's resolution of such conflicts. See Johnson v. Am. Family Mut. Ins. Co., 426 N.W.2d 419, 422 (Minn.1988). Here the arbitrator found, "The particular facts of this current arbitration would call for apportionment, based upon the prior accident, the prior and very recent chiropractic care * * *." While we do not agree with the arbitrator's use of the term `apportionment,' (see infra note 4) the implicit factual determination that some of Pususta's medical expenses were attributable to the earlier horse-riding accident is a factual determination within the arbitrator's factfinding powers. Johnson, 426 N.W.2d at 422. [4] We further stated that through this ruling "we cast a long shadow over the court of appeals' decision in Rodgers v. Progressive Specialty Ins. Co., 499 N.W.2d 61 (Minn.App.1993) [, rev. denied (Minn. Jun. 22, 1993) ]." In Rodgers, the claimant was still receiving medical care from an April 1990 auto accident when she was injured in a second, February 1991 accident. Her treating physician attributed 50 percent of Rodgers' injuries to the 1990 accident. The arbitrator awarded Rodgers the full amount of her medical expenses, but the district court reduced the award by half, stating that, "the insurer should pay only for those expenses that relate to the accident at hand." 499 N.W.2d at 62. The court of appeals affirmed, relying on use of the singular "the accident" causing injury in the definition of "loss" to exclude losses resulting from prior accidents. Id. at 63. [5] Thus, the dissent is correct that we have rejected subrogation claims under the No-Fault Act in the past. The dissent claims that the decision in this case is based on "equitable apportionment, which is an approach that we have specifically rejected for subrogation claims * * *." As noted herein, however, neither Great West nor Scheibel addressed the situation presented here, where the previous accident is not an automobile accident. The dissent's charge that we apply equitable apportionment also is not accurate, as "apportionment" in the automobile insurance context refers to a situation where several automobile insurance policies arguably cover the loss. See generally 16 Couch on Insurance 2d § 62:32 (1983). Here, there is just one automobile insurance policy that covers the loss, and the question presented is a threshold question of whether the claimed medical expenses are losses "resulting from the accident causing the injury," as the legislature required before imposing liability on the insurer. Minn. Stat. § 65B.43, subd. 7. Contrary to the conclusion reached by the dissent, we do not tread on the legislative domain by curtailing recovery of injured persons; rather, we give effect to the clear statutory language that medical expense reimbursement be "for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * *." Minn. Stat. § 65B.44, subd. 1. [6] In Scheibel we chose not to apply the undisputed attribution of 35 percent of Scheibel's medical expenses to the first accident/policy and 65 percent of Scheibel's medical expenses to the second accident/policy. However, we did limit Scheibel's recovery under the first policy to only that unreimbursed portion of his total medical expenses attributable to the first accident, acknowledging that to do so relied to some extent on apportionment. 615 N.W.2d at 39 & n. 3. Likewise, attribution of expenses is appropriate here to give effect to the statutory language that losses arise out of the use of an automobile. Minn. Stat. § 65B.44, subd. 1. While we have acknowledged that attributing expenses to a particular injury is appropriate in these contexts, the factual posture of this case does not require us to reach the question whether the "long shadow" over Rodgers remains. See Great West, 548 N.W.2d at 281 n. 4. [7] The dissent relies on subdivision 2 of Minn. Stat. § 65B.44, which describes medical expense benefits available under the no-fault system as "all reasonable expenses for necessary" services. The dissent ignores the context in which subdivision 2 arises, specifically that "medical expense loss" is described in subdivision 1 as a type of loss "suffered through injury arising out of the maintenance or use of a motor vehicle * * *." Minn. Stat. § 65B.44, subd. 1 (emphasis added). The dissent's construction of the statute provides a limitless standard that would allow recovery under the no-fault system for injuries wholly unrelated to use of a motor vehicle, contrary to the intent of the legislature.

+ 1 more citation in this opinion.

Arbitration Between Thomas v. Western National Insurance Group · 1997 2 citations

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Wertish v. Salvhus · 1997 3 citations

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Banks v. Grant · 1996 1 citation

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Great West Casualty Co. v. Northland Insurance Co. · 1996 1 citation

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Neal v. State Farm Mut. Ins. Co. · 1995 1 citation

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Richards v. Milwaukee Insurance Co. · 1994 3 citations

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Folstad v. Eder · 1991 4 citations

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Johnson v. Consolidated Freightways, Inc. · 1988 1 citation

+ 1 more citation in this opinion.

Regie De L'Assurance Automobile Du Quebec v. Jensen · 1987 1 citation

. Appellant Jensen likewise contends that the Regie is prohibited from maintaining the subro-gation action by provision of the Minnesota No-Fault Act. See, e.g., Minn. Stat. § 65B.53, subd. 2, 3; Minn. Stat. § 65B.51. See also, M. Steenson, Minnesota No-Fault Automobile Insurance, 23 (1982). Because we have adjudicated the case on other grounds, we do not address this issue.

Jorissen v. Miller · 1987 2 citations

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Rehnelt v. Stuebe · 1986 16 citations

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Mattsen v. Packman · 1984 2 citations

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National Indemnity Co. v. Farm Bureau Mutual Insurance Co. · 1984 1 citation

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Ferguson v. Illinois Farmers Insurance Group Co. · 1984 5 citations

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Nemanic v. Gopher Heating & Sheet Metal, Inc. · 1983 7 citations

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Langenberger v. Dahl · 1983 4 citations

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Bartel v. New Haven Township · 1982 10 citations

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Tuenge v. Konetski · 1982 1 citation

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Conat v. Provost · 1981 1 citation

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Parr v. Cloutier · 1980 1 citation

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Carufel v. Steven · 1980 6 citations

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Pfeffer v. State Automobile & Casualty Underwriters Insurance Co. · 1980 3 citations

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Haugen v. Town of Waltham · 1980 6 citations

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Travelers Insurance Co. v. Springer · 1979 4 citations

289 N.W.2d 131 (1979) The TRAVELERS INSURANCE COMPANY, Appellant, v. Genevieve A. SPRINGER, Respondent. No. 49231. Supreme Court of Minnesota. November 30, 1979. *132 Cousineau, McGuire, Shaughnessy & Anderson and Mark L. Pfister, Minneapolis, for appellant. Gordon Rosenmeier and John E. Simonett, Little Falls, for respondent. Heard before ROGOSHESKE, WAHL, and MAXWELL, JJ., and considered and decided by the court en banc. TODD, Justice. The Travelers Insurance Company (Travelers), a workers' compensation insurer, appeals from summary judgment entered against it. The trial court held that Travelers' right to seek reimbursement from a negligent third-party motorist for the medical expenses paid to an injured employee under the Workers' Compensation Act was abrogated by the no-fault automobile insurance act. We reverse and remand. On October 28, 1975, a car driven by Genevieve Springer collided with a vehicle driven by Mark Anderson, who sustained injuries. Because Anderson was acting within the scope of his employment at the time of the accident, his medical expenses in the amount of $104 were paid by his employer's workers' compensation insurer, Travelers. Travelers commenced suit against Springer to recover $88, reduced from $104 by the stipulated amount of Anderson's negligence. Springer prevailed on her motion for summary judgment, and this appeal was taken. The two issues presented are: (1) What kind of right does Minn. Stat. § 176.061, subd. 7 (1978), create for the employer's compensation carrier to seek reimbursement for medical expenses paid by it to an employee? (2) Whether that right is abrogated by the no-fault automobile insurance act to the extent that the expenses do not exceed the no-fault tort threshold? Although we held in American Mutual Liability Ins. Co. v. Reed Cleaners, 265 *133 Minn. 503, 122 N.W.2d 178 (1963), that Minn. Stat. § 176.061, subd. 5 (1978),[1] created a right of subrogation in the employee or its compensation carrier, we did not address the nature of rights created by subd. 7[2] in that case. Examination of both subdivisions, however, reveals their markedly different language and effect. In subd. 5, the legislature tied the compensation carrier's rights to receive reimbursement for its compensation expenses to the employee's ability to collect from the third party. In fact, at one point the legislature actually stated "the employer (carrier) is subrogated to the rights of the employee." In subd. 7, on the other hand, the legislature gave the compensation carrier "a separate additional cause of action against such third party to recover any amounts paid by him for medical treatment * * *. This separate cause of action * * * may be asserted in a separate action * * *." (emphasis added.) By this language, the legislature has clearly established a special right for carriers to sue third parties for any amounts of compensation paid to the employee as medical expenses. See Froysland v. Leef Bros., Inc., 293 Minn. 201, 197 N.W.2d 656 (1972). This right is entirely independent of any right the employee may have. Thus, Travelers has a statutory cause of action against the respondent, "[a] right of action under a statute which supersedes the common law and is strictly a statutory right of action, although the same facts would have constituted a right of action under prior common-law principles." 1 C.J.S., Actions § 9, p. 990 (1936). Even though Travelers has a statutory right of action, that right may have *134 been abrogated by the no-fault insurance act. Support for the position that the no-fault act ended all rights to recover against the tortfeasor for amounts less than the threshold amount exists in the Michigan case of Flower v. Gensterblum, 86 Mich. App. 561, 272 N.W.2d 726 (1978). The Minnesota no-fault act, however, operates differently than those of other states such as Michigan. Minn. Stat. § 65B.51, subd. 3 (1978), provides in part that "In an action described in subdivision 1, no person shall recover damages for non-economic detriment unless * * *." (emphasis added.) Thus, the Minnesota no-fault act does not preclude all suits, nor extinguish all claims, but merely provides that generally damages cannot be recovered unless certain threshold requirements are met. The Michigan statute is significantly different than Minnesota's. Mich.Stat.Ann. § 24.13135, subd. 2 (1978) [M.C.L.A. § 500.3135(2)], provides that "Notwithstanding any other provision of law, tort liability [with respect to the operation of motor vehicles] * * * is abolished except as to * * *." Thus, Michigan, taking an entirely different approach than Minnesota, has abolished tort liability. Had Minnesota abolished tort liability, then logically we would reach the conclusion that no one could recover against the tortfeasor. Minnesota did not do this, however. Neither did the other provisions of the no-fault act expressly abrogate the independent statutory right of action granted to carriers. Further, they did not even impliedly abrogate this right. Quite to the contrary, Minnesota's no-fault system grants parties, in certain situations, rights to recover damages even though they do not meet the threshold obligations of the statute. See Minn. Stat. 65B.51, subd. 2 (1978), and 65B.53, subd. 1 (1978). These exceptions merely emphasize the fact that Minnesota did not abolish tort liability but merely denied the right of recovery to injured parties in certain situations. Thus, allowing the employers to recover under § 176.061, subd. 7, would not be inconsistent with the overall effect of the no-fault act. We reverse the decision of the trial court and uphold the independent statutory right of Travelers to sue for the amount of its medical expenses compensation. Reversed and remanded. WAHL, Justice (dissenting). I respectfully dissent. I would affirm the trial court's determination that any right acquired by the employer or workers' compensation insurer is based on subrogation to the employee's cause of action against a third party. Because the employee is precluded by the no-fault automobile insurance act from suing the third-party tortfeasor for basic economic loss, the employee has no right to which Travelers could be subrogated. Subdivision 5 by its terms creates a right of subrogation in the employer. Since subrogation "will be applied wherever a person not acting voluntarily, but under some compulsion, pays a debt or discharges an obligation for which another is primarily liable and which in equity and good conscience ought to be discharged by the latter," 83 C.J.S. Subrogation § 8, p. 600, it is clear that Travelers would not be entitled to recover from the tortfeasor under subdivision 5, because, by virtue of the no-fault act, the tortfeasor is not primarily liable for the injured employee's medical expenses. In American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963), we rejected the argument that the workers' compensation insurer had a right of indemnity independent of its right to subrogation under subdivision 5. Although we were not called upon in that case to examine the nature of the rights created by subdivision 7, the language of that portion of the statute indicates that it, too, provides a right of subrogation only. Subdivision 7 addresses itself to the employer's cause of action to recover medical expenses from the tortfeasor "against whom the employee may have a cause of action which may be sued under this chapter * * *." Similarly, the subdivision refers to this cause of action as a "separate *135 additional" cause of action, which assumes that the employee also has a cause of action against the tortfeasor. Moreover, subdivision 7 states that the employer's cause of action may be asserted separately or "in the action commenced by the employee or the employer under this chapter * * *." This latter reference is to the action against the tortfeasor that may be brought under subdivision 5. See, Froysland v. Leef Bros., Inc., 293 Minn. 201, 197 N.W.2d 656 (1972). It would be incongruous to interpret subdivision 7 to establish a cause of action for the recovery of medical expenses that could be asserted either separately as an independent claim for indemnification, or in conjunction with a cause of action brought pursuant to subdivision 5, which only grants the employer subrogation rights, for then the employer's ability to recover would depend on a mere procedural technicality. I would hold that Minn. Stat. 176.061, subd. 7, creates a right of subrogation in the workers' compensation carrier and that, consequently, where the no-fault act precludes the injured employee from recovering medical expenses from the tortfeasor, the workers' compensation carrier is likewise precluded from bringing suit. SHERAN, Chief Justice (dissenting). I agree with Justice Wahl. NOTES [1] Minn. Stat. § 176.061, subd. 5 (1978), provides: Where an injury or death for which compensation is payable is caused under circumstances which created a legal liability for damages on the part of a party other than the employer, that party being then insured or self-insured in accordance with this chapter, and the provisions of subdivisions 1, 2, 3, and 4 do not apply, or the party other than the employer is not then insured or self-insured as provided by this chapter, legal proceedings may be taken by the employee or his dependents against the other party to recover damages, notwithstanding the payment by the employer or his liability to pay compensation. If the action against such other party is brought by the injured employee or his dependents and a judgment is obtained and paid or settlement is made with the other party, the employer may deduct from the compensation payable by him the amount actually received by the employee or dependents in accordance with subdivision 6. If the action is not diligently prosecuted or if the court deems it advisable in order to protect the interests of the employer, upon application the court may grant the employer the right to intervene in any such action for the prosecution thereof. If the injured employee or his dependents agree to receive compensation from the employer or institute proceedings to recover the same or accept from the employer any payment on account of such compensation, the employer is subrogated to the rights of the employee or his dependents. This employer may maintain an action or continue an action already instituted. This action may be maintained in the name of the employee or the names of the dependents or in the name of the employer against such other party for the recovery of damages. If the action is not diligently prosecuted by the employer or the court deems it advisable in order to protect the interest of the employee, the court, upon application, may grant to the employee or his dependents the right to intervene in the action for the prosecution thereof. The proceeds of such action or settlement thereof shall be paid in accordance with subdivision 6. Such party is not liable to any person other than the employee or his dependents for any damages resulting from the injury or death. [2] Minn. Stat. § 176.061, subd. 7 (1978), provides: The liability of an employer for medical treatment under this chapter shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, against whom the employee may have a cause of action which may be sued under this chapter, but the employer shall have a separate additional cause of action against such third party to recover any amounts paid by him for medical treatment under this section resulting from the negligence of such third party. This separate cause of action of the employer may be asserted in a separate action brought by the employer against such third party or in the action commenced by the employee or the employer under this chapter, but in the latter case the cause of action shall be separately stated, the amount awarded thereon shall be separately set out in the verdict, and the amount recovered by suit or otherwise as reimbursement for medical expenses shall be for the benefit of the employer to the extent that the employer has paid or will be required to pay for medical treatment of the injured employee and shall not affect the amount of periodic compensation to be paid.

289 N.W.2d 131 (1979) The TRAVELERS INSURANCE COMPANY, Appellant, v. Genevieve A. SPRINGER, Respondent. No. 49231. Supreme Court of Minnesota. November 30, 1979. *132 Cousineau, McGuire, Shaughnessy & Anderson and Mark L. Pfister, Minneapolis, for appellant. Gordon Rosenmeier and John E. Simonett, Little Falls, for respondent. Heard before ROGOSHESKE, WAHL, and MAXWELL, JJ., and considered and decided by the court en banc. TODD, Justice. The Travelers Insurance Company (Travelers), a workers' compensation insurer, appeals from summary judgment entered against it. The trial court held that Travelers' right to seek reimbursement from a negligent third-party motorist for the medical expenses paid to an injured employee under the Workers' Compensation Act was abrogated by the no-fault automobile insurance act. We reverse and remand. On October 28, 1975, a car driven by Genevieve Springer collided with a vehicle driven by Mark Anderson, who sustained injuries. Because Anderson was acting within the scope of his employment at the time of the accident, his medical expenses in the amount of $104 were paid by his employer's workers' compensation insurer, Travelers. Travelers commenced suit against Springer to recover $88, reduced from $104 by the stipulated amount of Anderson's negligence. Springer prevailed on her motion for summary judgment, and this appeal was taken. The two issues presented are: (1) What kind of right does Minn. Stat. § 176.061, subd. 7 (1978), create for the employer's compensation carrier to seek reimbursement for medical expenses paid by it to an employee? (2) Whether that right is abrogated by the no-fault automobile insurance act to the extent that the expenses do not exceed the no-fault tort threshold? Although we held in American Mutual Liability Ins. Co. v. Reed Cleaners, 265 *133 Minn. 503, 122 N.W.2d 178 (1963), that Minn. Stat. § 176.061, subd. 5 (1978),[1] created a right of subrogation in the employee or its compensation carrier, we did not address the nature of rights created by subd. 7[2] in that case. Examination of both subdivisions, however, reveals their markedly different language and effect. In subd. 5, the legislature tied the compensation carrier's rights to receive reimbursement for its compensation expenses to the employee's ability to collect from the third party. In fact, at one point the legislature actually stated "the employer (carrier) is subrogated to the rights of the employee." In subd. 7, on the other hand, the legislature gave the compensation carrier "a separate additional cause of action against such third party to recover any amounts paid by him for medical treatment * * *. This separate cause of action * * * may be asserted in a separate action * * *." (emphasis added.) By this language, the legislature has clearly established a special right for carriers to sue third parties for any amounts of compensation paid to the employee as medical expenses. See Froysland v. Leef Bros., Inc., 293 Minn. 201, 197 N.W.2d 656 (1972). This right is entirely independent of any right the employee may have. Thus, Travelers has a statutory cause of action against the respondent, "[a] right of action under a statute which supersedes the common law and is strictly a statutory right of action, although the same facts would have constituted a right of action under prior common-law principles." 1 C.J.S., Actions § 9, p. 990 (1936). Even though Travelers has a statutory right of action, that right may have *134 been abrogated by the no-fault insurance act. Support for the position that the no-fault act ended all rights to recover against the tortfeasor for amounts less than the threshold amount exists in the Michigan case of Flower v. Gensterblum, 86 Mich. App. 561, 272 N.W.2d 726 (1978). The Minnesota no-fault act, however, operates differently than those of other states such as Michigan. Minn. Stat. § 65B.51, subd. 3 (1978), provides in part that "In an action described in subdivision 1, no person shall recover damages for non-economic detriment unless * * *." (emphasis added.) Thus, the Minnesota no-fault act does not preclude all suits, nor extinguish all claims, but merely provides that generally damages cannot be recovered unless certain threshold requirements are met. The Michigan statute is significantly different than Minnesota's. Mich.Stat.Ann. § 24.13135, subd. 2 (1978) [M.C.L.A. § 500.3135(2)], provides that "Notwithstanding any other provision of law, tort liability [with respect to the operation of motor vehicles] * * * is abolished except as to * * *." Thus, Michigan, taking an entirely different approach than Minnesota, has abolished tort liability. Had Minnesota abolished tort liability, then logically we would reach the conclusion that no one could recover against the tortfeasor. Minnesota did not do this, however. Neither did the other provisions of the no-fault act expressly abrogate the independent statutory right of action granted to carriers. Further, they did not even impliedly abrogate this right. Quite to the contrary, Minnesota's no-fault system grants parties, in certain situations, rights to recover damages even though they do not meet the threshold obligations of the statute. See Minn. Stat. 65B.51, subd. 2 (1978), and 65B.53, subd. 1 (1978). These exceptions merely emphasize the fact that Minnesota did not abolish tort liability but merely denied the right of recovery to injured parties in certain situations. Thus, allowing the employers to recover under § 176.061, subd. 7, would not be inconsistent with the overall effect of the no-fault act. We reverse the decision of the trial court and uphold the independent statutory right of Travelers to sue for the amount of its medical expenses compensation. Reversed and remanded. WAHL, Justice (dissenting). I respectfully dissent. I would affirm the trial court's determination that any right acquired by the employer or workers' compensation insurer is based on subrogation to the employee's cause of action against a third party. Because the employee is precluded by the no-fault automobile insurance act from suing the third-party tortfeasor for basic economic loss, the employee has no right to which Travelers could be subrogated. Subdivision 5 by its terms creates a right of subrogation in the employer. Since subrogation "will be applied wherever a person not acting voluntarily, but under some compulsion, pays a debt or discharges an obligation for which another is primarily liable and which in equity and good conscience ought to be discharged by the latter," 83 C.J.S. Subrogation § 8, p. 600, it is clear that Travelers would not be entitled to recover from the tortfeasor under subdivision 5, because, by virtue of the no-fault act, the tortfeasor is not primarily liable for the injured employee's medical expenses. In American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963), we rejected the argument that the workers' compensation insurer had a right of indemnity independent of its right to subrogation under subdivision 5. Although we were not called upon in that case to examine the nature of the rights created by subdivision 7, the language of that portion of the statute indicates that it, too, provides a right of subrogation only. Subdivision 7 addresses itself to the employer's cause of action to recover medical expenses from the tortfeasor "against whom the employee may have a cause of action which may be sued under this chapter * * *." Similarly, the subdivision refers to this cause of action as a "separate *135 additional" cause of action, which assumes that the employee also has a cause of action against the tortfeasor. Moreover, subdivision 7 states that the employer's cause of action may be asserted separately or "in the action commenced by the employee or the employer under this chapter * * *." This latter reference is to the action against the tortfeasor that may be brought under subdivision 5. See, Froysland v. Leef Bros., Inc., 293 Minn. 201, 197 N.W.2d 656 (1972). It would be incongruous to interpret subdivision 7 to establish a cause of action for the recovery of medical expenses that could be asserted either separately as an independent claim for indemnification, or in conjunction with a cause of action brought pursuant to subdivision 5, which only grants the employer subrogation rights, for then the employer's ability to recover would depend on a mere procedural technicality. I would hold that Minn. Stat. 176.061, subd. 7, creates a right of subrogation in the workers' compensation carrier and that, consequently, where the no-fault act precludes the injured employee from recovering medical expenses from the tortfeasor, the workers' compensation carrier is likewise precluded from bringing suit. SHERAN, Chief Justice (dissenting). I agree with Justice Wahl. NOTES [1] Minn. Stat. § 176.061, subd. 5 (1978), provides: Where an injury or death for which compensation is payable is caused under circumstances which created a legal liability for damages on the part of a party other than the employer, that party being then insured or self-insured in accordance with this chapter, and the provisions of subdivisions 1, 2, 3, and 4 do not apply, or the party other than the employer is not then insured or self-insured as provided by this chapter, legal proceedings may be taken by the employee or his dependents against the other party to recover damages, notwithstanding the payment by the employer or his liability to pay compensation. If the action against such other party is brought by the injured employee or his dependents and a judgment is obtained and paid or settlement is made with the other party, the employer may deduct from the compensation payable by him the amount actually received by the employee or dependents in accordance with subdivision 6. If the action is not diligently prosecuted or if the court deems it advisable in order to protect the interests of the employer, upon application the court may grant the employer the right to intervene in any such action for the prosecution thereof. If the injured employee or his dependents agree to receive compensation from the employer or institute proceedings to recover the same or accept from the employer any payment on account of such compensation, the employer is subrogated to the rights of the employee or his dependents. This employer may maintain an action or continue an action already instituted. This action may be maintained in the name of the employee or the names of the dependents or in the name of the employer against such other party for the recovery of damages. If the action is not diligently prosecuted by the employer or the court deems it advisable in order to protect the interest of the employee, the court, upon application, may grant to the employee or his dependents the right to intervene in the action for the prosecution thereof. The proceeds of such action or settlement thereof shall be paid in accordance with subdivision 6. Such party is not liable to any person other than the employee or his dependents for any damages resulting from the injury or death. [2] Minn. Stat. § 176.061, subd. 7 (1978), provides: The liability of an employer for medical treatment under this chapter shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, against whom the employee may have a cause of action which may be sued under this chapter, but the employer shall have a separate additional cause of action against such third party to recover any amounts paid by him for medical treatment under this section resulting from the negligence of such third party. This separate cause of action of the employer may be asserted in a separate action brought by the employer against such third party or in the action commenced by the employee or the employer under this chapter, but in the latter case the cause of action shall be separately stated, the amount awarded thereon shall be separately set out in the verdict, and the amount recovered by suit or otherwise as reimbursement for medical expenses shall be for the benefit of the employer to the extent that the employer has paid or will be required to pay for medical treatment of the injured employee and shall not affect the amount of periodic compensation to be paid.

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+ 15 more citations in this opinion.

Lee v. Hunt · 2002 10 citations

+ 10 more citations in this opinion.

Nelson v. American Family Insurance Group · 2001 2 citations

+ 2 more citations in this opinion.

Luna v. Zeeb · 2001 3 citations

+ 3 more citations in this opinion.

Loven v. City of Minneapolis · 2001 3 citations

There are areas in which the legislature has expressly addressed the effect tort law and no-fault have on each other. Thus, basic economic loss benefits recovered under no-fault are to be deducted from any tort recovery. Minn. Stat. § 65B.51, subd. 1 (1998). In addition, tort recovery is not available unless certain thresholds provided for in the no-fault act are met. Minn. Stat. § 65B.51, subd. 3 (1998).

Braginsky v. State Farm Mutual Automobile Insurance Co. · 2001 7 citations

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Simpson v. American Family Insurance Co. · 2000 3 citations

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Smith v. American States Insurance Co. · 1998 1 citation

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Schmuckler v. Creurer · 1998 1 citation

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Johnson v. State Farm Mutual Automobile Insurance Co. · 1998 2 citations

+ 2 more citations in this opinion.

Ramsamooj v. Olson · 1998 6 citations

+ 6 more citations in this opinion.

Wertish v. Salvhus · 1997 3 citations

Appellant Evelyn Wertish sued respondent Daniel Salvhus for injuries sustained in an automobile accident. Following a jury trial, the district court ordered the entry of judgment pursuant to the jury’s verdict in favor of Wertish. Twelve days after the district court filed its order for judgment, Salvhus moved for amended findings to include an offset of no-fault benefits, under Minn. Stat. § 65B.51. The district court amended its findings to include the offset and Wertish appeals. By notice of review, Salvhus challenges the award of certain costs and disbursements. We affirm in part, reverse in part, and remand.

Thomas v. Western National Insurance Group · 1996 2 citations

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Banks v. Grant · 1995 3 citations

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Greenwaldt v. Illinois Farmers Insurance Co. · 1994 2 citations

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Sherman v. Marden · 1994 1 citation

+ 1 more citation in this opinion.

Richards v. Milwaukee Insurance Co. · 1993 4 citations

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Casper v. City of Stacy · 1991 3 citations

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Rivard v. McGinnis · 1990 6 citations

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Nhep v. Roisen · 1989 2 citations

+ 2 more citations in this opinion.

Moose Club v. LaBounty · 1989 12 citations

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Geckler v. Samuelson · 1989 1 citation

+ 1 more citation in this opinion.

Hartfiel v. McLennan · 1988 2 citations

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Gruman v. Hendrickson · 1987 6 citations

OPINION A. PAUL LOMMEN, Judge. Respondent Gruman’s personal injury claim against Hendrickson and Burlington Northern was submitted to arbitration. Appellant no-fault carrier moved to intervene, but that motion was denied. Following the arbitration award, appellant, again attempted to intervene and vacate the arbitration award. Appellant further requested, upon judgment entered in favor of Gru-man, it receive the amount of no-fault benefits paid to Gruman. The trial court denied appellant’s motion and this appeal followed. Appellant argues the trial court erred because (1) appellant has met the four-part test for intervention as a matter of right, (2) the arbitration award does' not reflect appellant’s statutorily protected subrogation claim, and (3) the arbitrator erred by deducting the value of no-fault benefits paid to plaintiff from the award. We affirm. FACTS Respondent Thelma Gruman (Gruman) initiated a lawsuit against defendants Ralph Hendrickson (Hendrickson) and Burlington Northern Railroad (Burlington Northern). Gruman alleged to have sustained personal injuries while a passenger in a motor vehicle owned and operated by Hendrickson. Hendrickson was operating his automobile over railroad tracks owned by Burlington Northern. Gruman’s injuries occurred when Hendrickson’s vehicle struck allegedly defective tracks of Burlington Northern. On the date of the accident, Gruman was insured by appellant, Western Fire Insurance Company. Appellant paid Gruman medical expense benefits totaling $2,951.41 and wage loss replacement service benefits of $6,052.33, for a total no-fault benefit payment of $9,003.74. In order to protect its subrogation claim, appellant made a motion to intervene. On January 31, 1986, the trial court issued an order denying appellant’s request for intervention on the basis the motion was premature and that appellant had no subrogation claim for basic economic loss benefits. On March 27, 1987, the case proceeded to arbitration pursuant to rule 5 of the Special Rules of Practice for the Fourth Judicial District. An award filed April 7, 1987 gave judgment for Gruman against Hendrickson and Burlington Northern for $12,000 jointly and severally. Hendrickson was assessed 15% at fault and Burlington Northern 85%. The award expressly provided that while all parties stipulated to amounts paid, Hendrickson and Burlington Northern contested the propriety or reasonableness of the payments. The award also specifically provided it was a net award and did not include basic economic loss benefits paid to date. No request for a trial de novo was made on behalf of any party and judgment was entered May 8, 1987. By motion and amended motion dated May 1, 1987 and June 5, 1987, appellant renewed its motion to intervene and requested the arbitration award and judgment be vacated or amended to reflect appellant’s subrogation claim. By order filed June 25, 1987, the trial court denied appellant’s motion and amended motion. The trial court found appellant’s cause of action, if any, was against Gruman and that appellant’s claim for sub-rogation had not arisen because there had been no double recovery by Gruman. This appeal followed. ISSUES 1. Did the trial court err in refusing to allow appellant to intervene in this suit as a matter of right? 2. Did the trial court err in refusing to vacate the arbitration award? ANALYSIS 1. Appellant argues the trial court erred in denying appellant’s motion to in*500tervene. Appellant’s intervention was sought pursuant to Rule 24.01, which provides: Upon timely application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Minn.R.Civ.P. 24.01. In reviewing orders concerning intervention as of right, this court will independently assess the appropriateness of the order. Norman v. Refsland, 383 N.W.2d 673, 676 (Minn.1986). We are not held to a standard of review requiring a clear abuse of discretion before we may reverse a trial court’s denial of a motion to intervene as a matter of right. Id. Rule 24.01 establishes a four-part test a nonparty must meet before being allowed to intervene as a matter of right: (1) a timely application for intervention; (2) an interest relating to the property or transaction which is the subject of the action; (3) circumstances demonstrating the disposition of the action may as a practical matter impair or impede the party’s ability to protect that interest; and (4) a showing the party is not adequately represented by the existing parties. Minneapolis Star & Tribune v. Schumacher, 392 N.W.2d 197, 207 (Minn.1986). The spirit behind Rule 24 is to encourage all legitimate interventions, and the rule is to be liberally applied. Engelrup v. Potter, 302 Minn. 157, 166, 224 N.W.2d 484, 489 (1974). Rule 24 is designed to protect nonparties from having their interests adversely affected by litigation conducted without their participation. Erickson v. Bennett, 409 N.W.2d 884, 887 (Minn.Ct.App.1987). Appellant argues it has met all four tests of Rule 24.01 and therefore should have been allowed to intervene. We agree. The Minnesota Supreme Court has held a subrogation claim is sufficient to support intervention. Miller v. Astleford Equipment Co., Inc., 332 N.W.2d 653, 654 (Minn.1983). Miller involved a fact situation very similar to this case in which the supreme court concluded the deduction of the value of basic economic loss benefits from any recovery could destroy the asserted subro-gation right. Id. at 655. The supreme court recognized the insurer’s interest would only be adequately protected by intervention. Id. Again in Milbrandt v. American Legion Post of Mora, 372 N.W.2d 702 (Minn.1985), the supreme court stated the appellant insurance company should have been allowed to intervene when it claimed a subrogation interest in the suit. Id. at 704 n. 1. We conclude appellant should have been allowed to intervene in this suit. However, that right of intervention is only for the purposes of protecting appellant’s statutory right of subrogation, if and when it arises. Respondent argues an insurer paying basic economic loss benefits to its insured under the No-Fault Automobile Insurance Act has a subrogation right only against its insured and only when the recovery represents in some measure a duplication of those benefits. According to the No-Fault Automobile Insurance Act: A reparation obligor paying or obligated to pay basic economic loss benefits is subrogated to a claim based on an intentional tort, strict or statutory liability, or negligence other than negligence in the maintenance, use, or operation of a motor vehicle. This right of subrogation exists only to the extent that basic economic loss benefits are paid or payable and only to the extent that recovery on the claim absent subrogation would produce a duplication of benefits or reimbursement of the same loss. Minn. Stat. § 65B.53, subd. 3 (1986). In Milbrandt, the supreme court affirmed a summary judgment against an insurer who brought a subrogation claim to recover basic economic loss benefits. The court stated: *501Although subdivision 3 indicates that the legislature intended reparation obligors to recover from tortfeasors basic economic loss benefits paid to insureds, the legislature clearly limited this right to cases where insureds recover duplicate benefits from tortfeasors. Milbrandt, 372 N.W.2d at 705. The court went on to state in strong language: The statute * * * means exactly what it says: a reparation obligor may assert a subrogation claim to recover basic economic loss benefits paid only when the insured has received a double recovery. Because the insurer’s right to recover benefits paid its insured exists only when the insured obtains double recovery, the right of recovery recognized in subdivision 3 may be asserted only against the insured. When seeking to recover under subdivision 3, the burden is on the insurer to show that the insured has been overcompensated. Id. (footnote omitted). The court noted the right of the insurer against the insured arises only in the event of a double recovery by the insured, not by reason of tort. Id. n. 2. The reference to the right of recovery as a subrogation right is a statutorily created right and is not true subrogation. Id.; see Miller v. Astleford Equipment Co., Inc., 378 N.W.2d 820, 822 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Feb. 14, 1986). Respondent argues appellant’s statutory right of subrogation is not against Burlington Northern and Hendrickson because subrogation in terms of a claim against the tortfeasor does not exist in Minnesota. Therefore, an insurance company can only recover benefits paid when the insured obtains double recovery. Milbrandt, 372 N.W.2d at 705; Peters v. B.P. & E., Inc., 397 N.W.2d 449, 451 (Minn.Ct.App.1986). Because there has been no double recovery by Gruman, respondent argues appellant has no subrogation claim. We agree. In light of the fact appellant’s statutory subrogation right never arose under Minn. Stat. § 65B.53, subd. 3, we conclude the trial court did not commit reversible error by refusing to allow intervention. 2. Appellant argues the trial court erred in refusing to vacate the arbitration award or judgment because the arbitrator erred in its application of the law. Appellant maintains the arbitrator erred by deducting the value of no-fault benefits paid to respondent from the award. Appellant claims it is entitled to relief pursuant to Minn.R.Civ.P. 60.02(1) and (6). A party seeking to vacate a judgment under rule 60.02 must show: (1) a reasonable claim on the merits; (2) a reasonable excuse for the neglect; (3) due diligence after notice of entry of judgment; and (4) that no substantial prejudice will result to the opponent. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456 (1952). Appellant argues it has complied with Rule 60.02 in all these respects. Appellant further argues the sub-rogation provision, Minn. Stat. § 65B.53, subd. 3, not the offset provision, Minn. Stat. § 65B.51, subd. 1, should control this case because Burlington Northern’s negligence was negligence other than negligence in the maintenance, use, or operation of a motor vehicle. Appellant contends the arbitrator relied on Minn. Stat. § 65B.51, subd. 1 to deduct the no-fault benefits paid. Appellant argues the arbitrator should have used Minn. Stat. § 65B.53, subd. 3 because section 65B.51 deals with actions limited to some type of motor vehicle use. Appellant maintains Burlington Northern’s negligence is not connected to motor vehicle use. Appellant’s reliance on Rule 60.02 as a means to vacate the arbitration award is misplaced. The Special Rules of Practice for the Fourth Judicial District specifically provide judgment entered upon an arbitration award may not be attacked or set aside except as provided in Rule 5.11(d) (1986): A party against whom a judgment is entered pursuant to an arbitration award may, within six months after its entry, move to vacate the judgment on the ground that the arbitrator was subject to a disqualification not disclosed before the hearing and of which the arbitrator was *502then aware, or upon one of the grounds set forth in the Uniform Arbitration Act, Chapter 572, Minnesota Statutes, and upon no other grounds. The motion shall be heard by the court upon notice to the adverse parties and to the arbitrator, and may be granted only upon clear and convincing evidence that the grounds alleged are true, and that the motion was made as soon as practicable after the moving party learned of the existence of those grounds. Id. Furthermore, the chapter 572 provisions for vacating an arbitration award provide in part: Upon application of a party, the court shall vacate an award where: (1) The award was procured by corruption, fraud or other undue means; (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; (3) The arbitrators exceeded their powers; (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 572.09 and the party did not participate in the arbitration hearing without raising the objection. But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award. Minn. Stat. § 572.19, subd. 1 (1986). Respondent asserts subdivision 1 does not allow the vacation of a judgment based upon an alleged error of law committed in the arbitration award. Grudem Brothers Co. v. Great Western Piping Corp., 297 Minn. 313, 316, 213 N.W.2d 920, 922-23 (1973). According to the supreme court: The arbitrators make the final determination of all questions submitted to them whether legal or factual. The court will not overturn these conclusions even if it believes the arbitrators made an incorrect conclusion. Id. at 316-17, 213 N.W.2d at 922-23. It is well established that an arbitration award “will be vacated only upon proof of one or more of the grounds stated in Minn. Stat. § 572.19 and not because the court disagrees with the decision on the merits.” AFSCME Council 96 v. Arrowhead Regional Corrections Board, 356 N.W.2d 295, 299-300 (Minn.1984). Thus, the applicable standard of review is determined from the grounds upon which a party seeks to vacate the award. Koranda v. Austin Mutual Insurance Co., 397 N.W.2d 357, 360 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Feb. 13, 1987). Respondent argues there was no error of law committed by the arbitrator. The award was clear the no-fault benefits paid by appellant to the insured were deducted. Respondent admits intervention may protect a subrogation claim for basic economic loss benefits, but maintains an insurer is limited to a recovery of no-fault benefits paid from the insured, not the tortfeasor, and such recovery is limited to amounts that represent a duplicate recovery to the insured. We agree. The facts of this case show the insured did not receive a double recovery. The arbitration award clearly excluded no-fault benefits paid to the insured from the award. Therefore, appellant’s subrogation right never matured. Appellant contends there is no incentive on the part of the insured to litigate once no-fault benefits are paid. Thus appellant feels it should be able to intervene to protect its subrogation right. Under the no-fault act, however, appellant has a duty to pay basic economic loss benefits to its insured without regard to fault. The very intent of the no-fault *503act results in the reparation obligor, not the tortfeasor, compensating the insured for his injuries. Home Mutual Insurance Co. v. Dean, 367 N.W.2d 568, 569 (Minn.Ct.App.1985). Appellant has not met its burden of proof to set aside the arbitration award. However, given the deference afforded arbitrators, we will not vacate the award. DECISION In light of the supreme court decision in Miller, the trial court erred in refusing to allow appellant to intervene. However, because there was no double recovery, appellant’s subrogation right did not mature and the trial court did not commit reversible error. The trial court did not err in refusing to vacate the arbitration award given the deference afforded arbitrators. Affirmed. HUSPENI, J., dissents.

HUSPENI, Judge (dissenting). I respectfully dissent. The majority agrees, as do I, that appellant should have been permitted to intervene. However, the majority concludes (after observing that the right of intervention is for the purpose of protecting appellant’s statutory right of subrogation if and when it arises) that because Gruman received no double recovery, appellant has no subrogation claim. That analysis, I submit, results in placing appellant in an impossible situation. This panel defends appellant’s right to intervene; the Milbrandt court, in a footnote, advises that even though the issue of denial of intervention had not been appealed, intervention should have, in fact, been granted. Mil-brandt, 372 N.W.2d at 704 n. 1. The court in Miller reversed the trial court’s denial of the insurer’s motion to intervene. Why do appellate courts protect with such vigor an insurer’s right to intervene if, in fact, that right is as hollow as the majority seems to deem it? What right does an insurer pursue upon intervention? Is it not the right to assure that its insured collects total damages due from the tortfeasor, so that the insurer may then recover from its insured to the extent its insured has received a double recovery? I submit that the court in Miller had such a possibility in mind when it wrote: The second requirement for intervention of right is that the applicant must be “so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Minn. Stat. § 65B.53, subd. 3 (1982) limits an insurer’s right of subrogation to amounts necessary to prevent a double recovery by the injured person. Minn. Stat. § 65B.51, subd. 1 (1982) requires that when injury is motor vehicle related in no-fault terms, no-fault benefits paid must be deducted from any tort recovery. Application of the offset provisions of § 65B.51 is, of course, in [the tort-feasor’s] interest. Deduction of the value of basic economic loss benefits from any recovery to which the [insureds] are entitled may, however, destroy [insurer’s] asserted subrogation right. The [insureds], on the other hand, have no incentive to resist application of the offset provisions, for recovery of the value of basic economic loss benefits would simply expose them to [insurer’s] claim for reimbursement. Consequently, it appears that [insurer’s] interest will be adequately protected only by intervention. Miller, 332 N.W.2d at 655. If appellant had been permitted to intervene, it would have been a party to this action. Perhaps it would have successfully protected its interests through participation in the ensuing arbitration. Perhaps it would have failed and the arbitrator may have entered an award identical to the one it actually did enter. However as a party, appellant could then have requested a trial pursuant to Rule 5.12 of the Special Rules for the Fourth Judicial District. Thus, any error of law in the arbitrator’s award *504would have been subject to correction upon trial. I agree with the majority that the scope of review of an arbitrator’s award is narrow. However, this matter should never have proceeded to arbitration without appellant. The majority, by agreeing that appellant should have been permitted to intervene, in effect concedes the point. I cannot accept as sound any legal analysis which strands a party (or one who admittedly should have been a party) in a position such as appellant here occupies. I would reverse.

+ 3 more citations in this opinion.

Kissner v. Norton · 1987 7 citations

+ 7 more citations in this opinion.

Fette v. Peterson · 1987 2 citations

+ 2 more citations in this opinion.

Petersen v. Kidd · 1987 1 citation

+ 1 more citation in this opinion.

Gunderson v. Olson · 1987 1 citation

+ 1 more citation in this opinion.

Ketterling v. Spud Bar, Inc. · 1986 3 citations

+ 3 more citations in this opinion.

Otto v. Hennen · 1986 5 citations

+ 5 more citations in this opinion.

Benson v. Johnson · 1986 3 citations

+ 3 more citations in this opinion.

Pierce v. Midwest Family Mutual Insurance Co. · 1986 1 citation

+ 1 more citation in this opinion.

Chaney v. Lieberman · 1986 2 citations

+ 2 more citations in this opinion.

Regie De L'Assurance Automobile Du Quebec v. Jensen · 1986 1 citation

+ 1 more citation in this opinion.

Lemkau v. Fout · 1986 1 citation

+ 1 more citation in this opinion.

Rud v. Flood · 1986 6 citations

OPINION LESLIE, Judge. Olga Rud commenced this action against Raymond Flood to recover damages for injuries sustained as a result of an automobile collision. Flood admitted fault and the sole issue for the jury was the extent of damages sustained by Rud. Rud appeals from the jury’s special verdict finding that she did not sustain a permanent injury. She also challenges the jury’s award of damages. We affirm. FACTS While stopped in her car on the shoulder of Crosstown Highway 62 on December 9, 1982, appellant Olga Rud was struck from behind by an automobile driven by respondent Raymond Flood. Respondent admitted fault. As a result of the collision, appellant was rendered unconscious and was taken by ambulance to the emergency room at Fair-view-Southdale Hospital. She remained in the hospital for approximately five days, during which time she suffered pain in her neck, upper back, and right shoulder. Dr. Jose Abullarade, appellant’s family physician, examined and diagnosed her condition as a severe strain of the cervical and thoracic spine. He observed muscle spasms *359and a contusion on the right shoulder and began treatment consisting of analgesics, hot packs, and bed rest. He prescribed a cervical collar, which appellant wore for three months following her release from the hospital. At the time of the accident, appellant was eighteen years old and in excellent health, with no history of prior neck or back problems. As a result of her injuries, she was unable to work regularly at her job from December 9, 1982 through February 1983. For eight months following the accident, appellant made numerous visits to Dr. Abullarde for treatment of pain and discomfort in her neck and lower back. He told her to continue with her previously prescribed course of treatment and to be as active as her pain would allow. Dr. Abul-larde testified at trial that appellant’s injuries were permanent. On August 24, 1983, appellant sought treatment from Dr. William Ashford, a licensed doctor of chiropractic at the Ash-ford-Wildenauer Chiropractic Clinic in Columbia Heights. Dr. Ashford diagnosed cervical cranial syndrome and cervical, thoracic, and lumbar myofascial syndrome. Appellant’s treatment, which consisted of electrical muscle stimulation and ultrasound treatments, continued on a regular basis through September 20, 1984. She was also told to use cold packs and a special cervical pillow. Dr. Ashford testified that appellant had sustained permanent impairment to the spine and supporting soft tissue structures. Appellant continued to suffer from head, neck, and back pain. On October 16, 1983, she entered the emergency room at Unity Hospital in Fridley. The attending physician diagnosed cervical muscle spasms and prescribed heat treatments and an analgesic. On October 1, 1984, appellant sought help from Dr. Jack E. Hubbard, a board-certified neurologist with the Minneapolis Clinic of Psychiatry and Neurology. Dr. Hubbard testified at trial that appellant was suffering from musculoligamentous strain to the cervical region and that the injuries were permanent. Dr. Hubbard prescribed a transcutaneous electrical neu-rostimulator unit, analgesics, a physical therapy program, and a home traction unit. Appellant presently remains under his care. At trial, appellant introduced testimony from lay witnesses that appellant’s work endurance and physical abilities had been significantly diminished since her accident. Appellant also introduced evidence of medical expenses totaling $5,388.20. By special verdict, the jury determined that appellant did not sustain a permanent injury as a result of the accident and did not sustain a disability for sixty days or more. The jury awarded appellant $1,170.95 for medical expenses and $1,000 for general damages. By operation of Minn. Stat. § 65B.51, subd. 3 (1984), she failed to meet the threshold requirements and therefore recovered nothing. The trial court entered an order for judgment and denied appellant’s motion for a new trial. ISSUES 1. Was there sufficient evidence to support the jury’s finding that there was no permanent injury? 2. Do the damages awarded demonstrate speculation, conjecture, and prejudice by the jury? ANALYSIS 1. The scope of review of a trial court’s denial of a motion for new trial is narrow. [T]he question of whether a verdict is adequate must be addressed in the first instance to the sound discretion of the trial court, and its action shall be reversed on appeal only if an abuse of discretion can be demonstrated. Williamson v. Furch, 304 Minn. 558, 558-59, 229 N.W.2d 39, 40 (1975). An answer to a special verdict question will be set aside only if “perverse and palpably contrary to the evidence, or where the evidence is so clear as to leave no room for differences among reasonable persons.” Olson v. Havir Manufacturing Company *360of St. Paul, 357 N.W.2d 136, 138 (Minn.Ct.App.1984). Non-economic loss is recoverable under our No-Fault Act only if the injured party satisfies one of the tort thresholds of Minn. Stat. § 65B.51, subd. 3 (1984). The tort thresholds include permanent disfigurement, permanent injury, death, or disability for sixty days or more. Minn. Stat. § 65B.51, subd. 3(b). Appellant argues that she met the burden of proof by introducing uncontradicted medical proof from all three treating doctors that her injuries were permanent. Appellant relies on Williamson, 304 Minn. 558, 229 N.W.2d 39. In that case, the plaintiff claimed injuries to his head, neck, shoulder, spine, and back as a result of a car accident. Numerous treating physicians either testified as witnesses for the plaintiff or submitted medical records. The trial court directed a verdict for the plaintiff on the issue of liability and submitted the question of damages to the jury. The jury awarded no damages to the plaintiff. The Minnesota Supreme Court held that because there was no conflicting medical evidence regarding causation, a verdict of no damages could not be sustained. Id. at 559, 229 N.W.2d at 40. We reject appellant’s contention that the jury in the present case was bound to accept the experts’ testimony. There is no requirement that defendants in a personal injury action introduce their own medical experts to refute the claim of injury if this can be accomplished by cross-examination of the experts and by reference to the medical records. In Krueger v. Knutson, 261 Minn. 144, 111 N.W.2d 526 (1961), the plaintiff similarly argued that testimony by the only medical expert regarding the injuries sustained was conclusive on the jury because the defense offered no opposing medical testimony. Id. at 158-59, 111 N.W.2d 526, 536 (1961). The supreme court disagreed, reasoning as follows: It must be assumed that the jury gave consideration to [the doctor’s] testimony and recognized that there was no opposing medical testimony and that the trial court had these factors in mind both during the course of the trial and upon the arguments in support of the motions for a new trial. It was the prerogative of the jury to give full consideration to the medical testimony, but the jury was not conclusively bound to accept in every detail the medical testimony submitted. ****** Medical experts are permitted to give their opinions upon the very issue which the jury will have to decide, but such opinions are not conclusive unless so positive as to exclude all doubt as to the matter on which they are given and unless based on testimony which is positive, consistent, unimpeached, and uncontra-dicted. Where the opinion does not exclude other possibilities or is not based on such testimony, its weight is for the jury. Id. at 159, 111 N.W.2d at 536; see Nemanic v. Gopher Heating and Sheet Metal, Inc., 337 N.W.2d 667, 670 (Minn.1983) (jury not bound to accept expert opinion even in absence of adverse expert); Bresson v. Stoskoph, 370 N.W.2d 80, 82 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Sept. 13, 1985). Although respondent admits that appellant’s experts never altered their opinions regarding permanency, it is respondent’s position that through cross-examination he showed that appellant, at most, suffered a short-term irritation to her neck and back. Dr. Abullarade, the family physician, noted in his record approximately two weeks after' the accident that appellant had full motion in her neck, her back was normal, and she had “little pain.” He allowed appellant to return to her work, which he admitted required bending. Dr. Abullarde made no written finding of muscle spasms after respondent was discharged from the hospital. He saw appellant as recently as April 5, 1985, January 8, 1985, and November 9, 1984, and testified that on each occasion there was no complaint of back or neck discomfort. Dr. Abullarde never referred appellant to either a neurologist or an or*361thopedist. He testified without reviewing the records of Dr. Hubbard or Dr. Ashford that appellant had a permanent injury. Dr. Ashford testified that in the sixteen months he treated appellant at his chiropractic clinic, he saw her 50 times, charged a minimum of $44.00 per visit, and for the most part performed the same treatment at each visit. Even though there was no progress, he never consulted a medical doctor or reviewed any of her medical records. Respondent argues that this treatment probably was viewed as excessive and unnecessary by the jury because the jury disallowed recovery for Dr. Ashford’s entire medical bill. Respondent also argues that he successfully impeached appellant through cross-examination. Respondent contends that the jury may have determined that appellant’s complaints dealt with emotional stress and tension related to work and not to the injuries sustained in this accident. In addition, appellant testified that she failed to continue in the physical therapy program advised by Dr. Hubbard and that she had danced approximately four times each month over the two months prior to trial. Finally, respondent argues that appellant’s credibility suffered greatly when she testified that on a car trip to Toronto two years after the accident, she had to stop every ten or fifteen minutes to stretch and stand. We uphold the jury’s special verdict because it is not perverse and palpably contrary to the evidence. The injuries complained of were admittedly “soft tissue” in nature, making objective evidence of permanency difficult to obtain. Consequently, the jury was forced to base its determination on the complaints of appellant, which the jury could choose to disbelieve. 2. Appellant’s second argument is that because the jury improperly decided the issue of permanency, the jury failed to award adequate damages. Appellant contends that it presented evidence to the jury to substantiate medical expenses totaling $5,388.20. Although respondent did not offer evidence to dispute these expenses, the jury awarded $1,170.95 for medical expenses, no future damages, and $1,000 for genera] damages. The trial court noted in its order and memorandum denying appellant’s motion for new trial that the special damage award coincided with a disallowance of the stipulated billings from the Chiropractic Clinic, Unity Medical Center, and the Minneapolis Clinic. This court has recently stated that a damage award that is less than proven special damages may be overturned as the product of passion or prejudice. Heroff v. Metropolitan Transit Commission, 373 N.W.2d 355, 357 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Nov. 18, 1985). Nevertheless, the resolution of the previous issue may be determinative of this issue. “The rule is that where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse.” Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973) (quoting Sell v. Milwaukee Automobile Insurance Co., 17 Wis.2d 510, 519, 117 N.W.2d 719, 724 (1962)). We believe that the damage award was not the result of passion and prejudice. The jury was free to find that appellant’s chiropractic, neurological, and emergency treatment more than eight months after the accident was unnecessary. The jury obviously believed respondent’s theory that appellant suffered a short-term irritation to her neck and back. We find no abuse of discretion in the trial court’s denial of a new trial. DECISION There was sufficient evidence to support the jury’s finding of no permanent injury and the jury’s award of damages. Affirmed. NIERENGARTEN, J., dissents.

+ 3 more citations in this opinion.

Lipa v. Johnson · 1986 3 citations

+ 3 more citations in this opinion.

Miller v. Astleford Equipment Co., Inc. · 1985 1 citation

+ 1 more citation in this opinion.

Fox v. City of Holdingford · 1985 4 citations

+ 4 more citations in this opinion.

LeBaron v. Hanson · 1985 1 citation

+ 1 more citation in this opinion.

Erickson v. Hinckley Municipal Liquor Store · 1985 1 citation

+ 1 more citation in this opinion.

Bresson v. Stoskoph · 1985 1 citation

+ 1 more citation in this opinion.

Thompson v. Hill · 1985 1 citation

+ 1 more citation in this opinion.

Danielson v. Johnson · 1985 4 citations

+ 4 more citations in this opinion.

Anderson v. Honaker · 1985 1 citation

+ 1 more citation in this opinion.

Carl v. Pennington · 1985 1 citation

+ 1 more citation in this opinion.

Krummi v. MSI Insurance Co. · 1985 1 citation

+ 1 more citation in this opinion.

Newmaster v. Mahmood · 1985 2 citations

+ 2 more citations in this opinion.

Fahy v. Templin · 1985 3 citations

+ 3 more citations in this opinion.

Zieminski v. Caauwe · 1984 2 citations

+ 2 more citations in this opinion.

Milbradt v. American Legion Post of Mora · 1984 3 citations

+ 3 more citations in this opinion.

Coughlin v. LaBounty · 1984 2 citations

+ 2 more citations in this opinion.

Hawkinson v. Geyer · 1984 1 citation

+ 1 more citation in this opinion.

Lindner v. Lund · 1984 4 citations

+ 4 more citations in this opinion.

Marose v. Hennameyer · 1984 5 citations

+ 5 more citations in this opinion.

U.S. District Court, D. Minnesota

C.B.S. v. United States · 2023 2 citations

26. If damages are awarded, the United States may later move the Court for deduction of collateral benefits or collateral source payments for the losses alleged. Minn. Stat. §§ 65B.51, 548.251.