The case arose from the tragic September 26, 2003 crash between a BNSF freight train and a car containing four young adults: Brian Frazier, Bridgette Shannon, Corey Chase, and Harry Rhoades. Burlington Northern blamed the victims for the accident, alleging that they had driven around warning gates and tried to beat the train. Attorneys for the estates of those killed brought forward evidence that BNSF had failed to maintain the crossing signal gates and lights and that three prior accidents had occurred at the same crossing due to defective gates and lights.

Anoka County District Court Judge Ellen Maas found that the railroad had destroyed and fabricated evidence showing the train’s speed at the crossing, refused to produce relevant evidence, knowingly advanced lies and misrepresentations by railroad employees, and failed to reveal their knowledge of prior problems with the crossing. Judge Maas added 4.6 million dollars in sanctions to the $24,000,000.00 jury verdict against BNSF to punish them for their “staggering misconduct” in concealing evidence.

The railroad appealed the Anoka District Court ruling to the Minnesota Court of Appeals which granted BNSF’s request for a new trial. Plaintiffs appealed this decision to the Minnesota Supreme Court which in this decision overturned the decision of the Court of Appeals.

Judge Maas in an interview with the Minneapolis Star Tribune expressed her happiness with the Supreme Court’s ruling, stating: “Trial judges and lawyers can rest a little easier now, knowing that their agreements and stipulations will … not be subject to a mulligan if one side is unhappy with the final decision or verdict.”

The Railroad has indicated it will respect the verdict, thus bringing to a close the 8 year old case.

In 2006 Mr. Straka, 72 years old, was prescribed a ten day course of the antibiotic Levaquin to combat an upper respiratory infection. Eleven days after starting the drug Mr. Straka complained of acute pain in both Achilles tendons. He was diagnosed with ruptures of both Achilles tendons.

Mr. Straka sued Johnson and Johnson alleging that Levaquin caused his tendon ruptures; that Johnson and inadequately warned of the danger of Achilles tendon rupture; that Johnson & Johnson concealed the risk posed by Levaquin; and that the product was inherently dangerous.

The defendants argued that they had warned of the dangers of Levaquin causing tendon ruptures since 1997. They also argued that their drug was no more likely to cause Achilles tendon ruptures than any other floroquinalone type antibiotic.

This verdict marks the third consecutive defense verdict on a Levaquin case following an initial 1.8 million dollar plaintiff’s verdict against Johnson & Johnson.

6 year old Zachary Drew was walking holding hands with his mother and three siblings when Rodriquez ran him over with his SUV dragging him several feet. Zachary rolled out from underneath the SUV which did not stop until it hit a concrete wall.

The boy suffered a broken nose, teeth, jaw and leg and needed surgery to repair his broken bones. His father, Sgt. Richard Drew, was returning from his third tour of duty in Iraq.

Mr. Rodriguez admitted to police that he had drunk four glasses of wine just an hour before the crash on December 17, 2011. He has now been charged with third degree driving while impaired. Mr. Rodriguez has a prior DUI conviction in 2004 in Dakota County. He also told police he saw the family crossing the road and did nothing to slow down or avoid a collision.

The family has established a fund for donations: “Benefit for Zachery Drew” Fund, Wings Financial Credit Union, 14985 Glazier Ave., Suite 100, Apple Valley, MN 55124.

http://tinyurl.com/6nhy8r2

The State of Minnesota Court of Appeals recently heard the case of Cindy Engelke and Kurt Speich for the next of kin of Melissa A. Speich vs. State Farm Fire and Casualty Co. and Preston Doyle (Hennepin County District Court File No. 27-CV-09-19495).

On April 8, 2007 Melissa Speich died of injuries sustained in a motor vehicle accident which occurred when she was hit by a drunk driver.  She was driving her fiancé Adam Doyle’s Toyota Celica when the accident occurred.

The attorneys for Melissa’s next of kin first settled the case against the drunk defendant for his automobile insurance policy limits of $50,000.00.  They then brought a claim against State Farm Insurance, which insured Adam Doyle’s car, for underinsured motorist benefits.  Underinsured Motorist Coverage (UIM) exists to provide an insured with additional coverage when his or her damages exceed the value a defendant’s liability policy. The policy listed Adam Doyle and his mother Judith Doyle as named insureds, and it broadly defined an insured driver as “any other person while occupying…your car…Such vehicle has to be used within the scope of the consent of you or your spouse.”  State Farm agreed that Melissa met the broad definition of an insured under the policy language and paid out their $100,000.00 underinsured policy limits.

The attorneys for Melissa’s next of kin next sought to access a separate “umbrella” insurance policy issued by State Farm Mutual to Adam’s mother Judith Doyle and her husband, Preston Doyle.  An umbrella policy is usually tied to homeowners insurance and is intended to cover an insured’s losses in excess of any liability and underinsured coverage in the event of an accident.  The Doyle’s umbrella policy language defined an insured under the policy as the named insured, the named insured’s relatives who lived in the same household as the named insured, anyone who lived in the same household under 21 years of age who was under the care of a named insured, or a person using an automobile…owned by, rented by, or loaned to the named insured, provided that the named insured gave permission for the type of use.

State Farm refused to pay on the policy, arguing that 1.) Judith Doyle and Preston Doyle were the only named insureds on the umbrella policy; and 2) that Adam Doyle, not Judith Doyle, was the titled owner of the car.  State Farm argued further that Mellissa did not meet any of the other definitions of an insured under the policy.

Attorneys for the next of kin argued that the intent of the Doyles had been to cover the vehicle under the homeowner’s umbrella policy and that proof of their intent was that they had specifically listed Judith Doyle on the automobile insurance policy.  They further argued that State Farm could not claim Melissa was an insured on one policy but not an insured on another.   State Farm argued that the intent of the Doyles did not matter and that the actual terms of the umbrella policy dictated who was covered by the policy.  State Farm argued that the stricter definition of an insured in the umbrella policy excluded Melissa from coverage.

The District Court agreed with State Farm and dismissed the case on a summary judgment motion. On January 4, 2011 the Minnesota Court of Appeals upheld the District Court’s opinion.  They wrote in their opinion that: “The underlying policy and the umbrella policy are two separate contracts; there is nothing unlawful or improper in defining the scope of coverage differently in each policy.”

The Meshbesher Law Firm reminds you when meeting with your insurance agent to be very specific as to the extent of the coverage you want to purchase.  Read through your policy, and if you are not clear on its terms, call your agent and ask for written clarification.  You could also call an attorney to review your policy to make sure you are covered before tragedy strikes.

If you have been injured in an accident, call the Meshbesher Law Firm for a free consultation.  612-349-5215.

Author: Dan Meshbesher.  Meshbesher Law Firm.

Minnesota Car in ditch due to snowstorm

Winter finally comes to Minnesota this year, ending an unseasonably warm November. A slow moving snow storm is moving through the State covering the roads with a heavy wet snow. The Meshbesher Law Firm reminds you that reduced speeds are necessary in the winter. Give yourself extra time to get to your destination and bring a cell phone. Remember that stopping your vehicle is going to take some extra room.

“Release of Liability…I waive any and all claims or actions that may arise against Life Time Fitness, Inc., its affiliates, subsidiaries, successors or assigns…as a result of any such injury…to any such person, including and without limitation, personal, bodily or mental injury, economic loss or any damage to me, my spouse, my children or guests resulting from the negligence of Life Time Fitness or anyone else using a Lifetime fitness center. “
Although he may not have realized it, when Mr. Resnick signed this form, he was waiving any claims he might have against the club– even if they were responsible for a hazardous condition at the club. Subsequently, Mr. Resnick was badly injured when he slipped and fell on construction dust in a racquetball court at the club. His initial suit against the club was dismissed on summary judgment as a result of the Release of Liability clause in the MUA. Mr. Resnick appealed and, on June 8, 2010, the Minnesota Court of Appeals upheld the district court decision in case A09-1372. The Court stated that it is settled Minnesota law that under certain circumstances, parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.

 The Court of Appeals cited Anderson v. McOskar Enterprises, Inc., 712 NW2d 796,799 (Minn. App. 2006). In that case, plaintiff Anderson joined a Curves fitness owned by McOskar and signed a form similar to Lifetime’s “MUA” containing the following language:

“In consideration of being allowed to participate in the activities and programs of Curves for Women® and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge Curves International Inc., Curves for Women®, and their officers, agents, employees, representatives, executors, and all others (Curves® representatives) from any and all responsibilities or liabilities from injuries or damages arriving [sic] out of or connected with my attendance at Curves for Women®, my participation in all activities, my use of equipment or machinery, or any act or omission, including negligence by Curves® representatives.”

Ms. Anderson was given an exercise plan and, while performing her exercises, complained of neck pain to her trainer. Anderson alleged that she had been told to work through the pain as it was “ just her muscles not being used to the exercise.” Ms. Anderson ultimately needed a cervical discectomy to repair the damage done to her neck, and she sued Curves/McOskar, alleging negligence on the part of their trainer. The Minnesota Court of Appeals ruled that the release form she signed was binding and that Ms. Anderson could not bring a claim for her injuries, even if her trainer had been negligent.

Although the Court of Appeals said in both of these cases that there are some specific instances where a health club release would be invalid– if it waived claims for intentional or willful acts on the part of the club, for instance– the clear impact of these cases is to make your health club immune to suit for its general negligence.

Be aware of what you are signing and know that if someone is asking you to sign something, it is generally for a reason. If you don’t like the language in a contract you are signing, line it out, or consider not signing.

If you have been injured in a Minnesota accident, call us. We’ll help.
Meshbesher Law Firm: 612-349-5215. Find us on the web at http://meshbesherlawfirm.com.

Author: Daniel Meshbesher, Meshbesher Law Firm.

In Kolosky vs. Woodwinds Hospital, Dr. Mark Dahl, Northwestern Health Sciences University and Ian Johnson, the plaintiff, who developed a serious infection following a knee replacement surgery, decided to pursue a medical malpractice claim. He believed his post-surgical acupuncture caused his infection, and he consequently sued his medical providers. Electing to act as his own attorney, he ran afoul of the Minnesota Statutes governing the legal process. The Washington County District Court ruled that he had failed to serve an affidavit of expert review with his Summons and Complaint and therefore, following a Summary Judgment motion, dismissed his case without even discussing the merits of his malpractice claims.

Mr. Kolosky, acting again as his own attorney, appealed his case to the Minnesota Court of Appeals. On December 1, 2009, in unpublished decision A09-0667, the Minnesota Court of Appeals rejected his various arguments and denied the appeal outright.

The Court ruled that in all but the most exceptionally rare of medical malpractice suits, Minnesota Statute 145.682 requires that the plaintiff serve an affidavit of expert review along with the Summons and Complaint. The affidavit must state that 1) the plaintiff’s case has been reviewed by an expert whose qualifications are such that his/her opinion would likely be admissible at trial and that 2) in the opinion of the expert, the defendant deviated from the medical standard of care, and 3) by that deviation, caused injury to the plaintiff.

Even though Mr. Kolosky tried to remedy the defect to his case by subsequently filing an affidavit, the District Court ruled that he had waited too long. Citing case law stating that the statutory requirements are “uncomplicated and unambiguous” and “cut with a sharp but clean edge,” the Court of Appeals upheld the dismissal. The decision explained that “Because strict compliance is required and Kolosky’s affidavit was late, dismissal with prejudice was mandatory.”

Many complicated rules govern the pursuit of a lawsuit in Minnesota, and an attempt to act as your own attorney may have disastrous consequences. Before you try to “do it yourself,” call the Meshbesher Law Firm at 612-349-5215 to speak to a lawyer about your claim. You can also submit your questions online at http://meshbesherlawfirm.com.

Minnesota Tour Bus Crash

The driver of the Strain Bus Tours bus that crashed and rolled last month in southern Minnesota, killing two people and injuring 20 others, was found to have suffered a rapid onset of internal bleeding in his esophagus, which caused him to lose control of the bus.  State Patrol investigators cleared the driver of any criminal wrongdoing in the matter.  The Freeborn County Attorney’s office has announced it will not be bringing charges against the driver.

Given this fact pattern, the insurer for the bus will likely now attempt to invoke the Emergency Rule to attempt to avoid legal responsibility for the accident. 

The Minnesota Supreme Court in Johnson v. Townsend, 195 Minn. 107, 110 NW 859, 861 (1935), stated as follows:  “One suddenly confronted by a peril, through no fault of his own, who, in the attempt to escape does not choose the best or safest way, should not be held negligent because of such choice unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions. “

The Supreme Court in Byrns v. St. Louis County, 295 NW 2d 517 519 (Minn. 1980) stated that an instruction on this theory should be given upon request by a party where the evidence would sustain the finding that a person whose negligence would be submitted to a jury had been confronted with a sudden danger or emergency.

Minnesota courts have held that drivers faced with an unforeseen medical emergency which deprives the driver of all opportunity for deliberation are entitled to invoke this defense when faced with negligence claims.  Minder v. Peterson, 254 Minn. 82, 93 NW2d 699 (1958).

Attorneys for a plaintiff faced with an emergency medical condition defense have to convince the jury that either the driver or the company knew or should have known about the driver’s medical condition and should thus have foreseen the accident. 

Regardless of the defenses raised, the injured passengers and the heirs of those killed in any bus crash will still have no fault automobile insurance claims they can bring for medical bills, wage loss and funeral expenses.

The facts of each individual case are unique and will require personal legal analysis. Various statutes of limitiations apply to every case which can bar pursuit of a claim if allowed to expire. The Meshbesher Law Firm reminds you if you have been injured in an accident to be certain to consult with an attorney to protect your legal rights.

 Remember to drive at a speed appropriate for the dangerous road conditions. Even cars and trucks with four wheel drive can run into difficulties in this type of weather. Although driving in a straight line may not be a problem, stopping or turning may pose difficulties. Remember to drive defensively and do not assume other vehicles will be able to stop for stop signs and lights. Minnesota Law requires that a driver be able to bring his or her car to a complete stop no matter what the road conditions may be. If you are driving too fast and cause an accident after you lose control of your vehicle, you will be responsible for any damages you may cause.

If you have been injured in a car crash due to another driver’s negligence feel free to call the Meshbesher Law Firm at 612-349-5215 for a free consultation.  You can also submit your questions online by filling in the free case evaluation form at the top left corner of the page.