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Perius v. Nodak Mutual Insurance Co.

May 11, 2010


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

The opinion of the court was delivered by: Crothers, Justice.


[¶1] Allen Perius appeals from a summary judgment dismissing his action against his motor vehicle insurer, Nodak Mutual Insurance Company, for no-fault benefits and for uninsured motorist coverage. We conclude there are disputed issues of material fact about whether Perius's claimed damages were proximately caused by a motor vehicle accident, and we reverse and remand.


[¶2] On October 8, 2004, Perius was driving his motor vehicle when he was involved in an accident with an uninsured motor vehicle driven by Jacob Kessler. Perius insured his motor vehicle with Nodak, which provided coverage for basic no-fault benefits and for uninsured motorist benefits. Perius claimed he injured his neck and upper back in the accident, and on October 12, 2004, he sought medical treatment from his primary care physician, Dr. Ron Tello, who prescribed physical therapy. Nodak paid $1,020.75 in no-fault benefits for Perius's consultation with Dr. Tello and for the prescribed physical therapy. Perius completed the prescribed physical therapy on November 30, 2004, and he did not seek additional medical treatment until March 2005, when he saw a chiropractor. Perius submitted those chiropractic bills to Nodak for payment as no-fault benefits. Nodak requested an independent medical examination for Perius, and after receiving the results of that examination, Nodak denied Perius payment for any medical treatment after December 31, 2004, concluding that treatment was not related to the motor vehicle accident.

[¶3] In 2007, Perius sued Kessler and Nodak, alleging Kessler negligently operated his uninsured vehicle and proximately caused Perius "severe injuries including but not limited to injuries to the spine and soft tissues surrounding the spine." Perius also alleged Nodak breached its insurance contract with him for uninsured motorist coverage and for no-fault benefits. Nodak denied liability, asserting Perius's claimed injuries were the result of an existing condition and were not proximately caused by the October 2004 accident. Nodak also asserted a cross-claim against Kessler regarding Perius's uninsured motorist claim. Kessler did not answer the claims against him.

[¶4] A scheduling order required Perius to disclose his experts by May 12, 2009. On May 10, 2009, Perius provided Nodak with a list of 11 medical providers expected to testify about "causation and damages." Nodak requested further information, stating Perius's disclosure of experts was insufficient because it "provides no meaningful information and does not identify 'the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion' as required under [N.D.R.Civ.P.] 26."

[¶5] In June 2009, Nodak moved for summary judgment, claiming Perius's medical treatment after December 31, 2004, was for an existing degenerative arthritis and no competent, admissible evidence established his claimed injuries were proximately caused by the motor vehicle accident. Perius resisted Nodak's motion for summary judgment, claiming he had sustained a serious injury under no-fault law because he had incurred more than $16,000 in medical expenses for treatment directly related to injuries sustained in the accident. Perius claimed his medical providers had diagnosed "severe arthritis" from the accident which had "shifted around someplace in my neck where it bothers me more." Perius submitted affidavits of two of his treating medical providers, Dr. Michael Quast and Dr. Kelly Remillard. Dr. Quast's affidavit said Perius "is continuing to have persistent pain and I believe it is a result of traumatic arthritis from the injury" sustained in the motor vehicle accident. Dr. Quast's affidavit further stated, "To a reasonable degree of medical certainty, I believe the medical treatment I have provided Allen Perius and associated medical expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Dr. Remillard's affidavit said,"To a reasonable degree of medical certainty, I believe the medical/chiropractic treatment I have provided Allen Perius and associated medical/chiropractic expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Nodak responded that the affidavits of Dr. Quast and Dr. Remillard were conclusory and did not provide competent, admissible evidence of causation and that those affidavits should be excluded because they did not comply with applicable discovery rules.

[¶6] The district court granted Nodak summary judgment, concluding Perius failed to produce competent, admissible evidence creating a factual issue that his claimed injuries were proximately caused by the accident. In its oral decision, the court stated:

"[Perius] didn't comply in a meaningful way with the scheduling order in terms of discovery responses regarding the expert disclosure. Those were due on May 12th, and my review of the materials indicate that [Perius's] discovery response was basically just a list of a number of medical providers and that the only disclosure as to subject matter, and the substance of the testimony was that they would testify as to causation and damages. I don't believe that that is what the Supreme Court contemplated in case law that talks about full, complete and fair disclosure of subject matter and the substance of the testimony. I just believe that there has to be a lot more than that. And I realize in the context of a summary judgment motion, a discovery issue isn't really dispositive, but what that leads me to is the competency admissibility of the affidavits that were provided by Dr. Quast and Dr. Remillard. They, as [Nodak] argued, are basically conclusory statements that the injury was caused by the accident, but there's no basis for their opinions provided. There's nothing on which any person could look at them and say okay, this opinion is based on this evidence, or this review of the records, or this statement by [Perius] or anything else. They're just conclusory statements with absolutely no support. And I just believe that that is not competent admissible evidence. It's well, first of all, you could make a pretty good argument that it isn't even accurate because there was some evidence of previous injuries. And I realize [counsel for Perius], you know, I guess didn't go in real detail, but there was certainly evidence of some previous issues at least with the back. And you may be correct, not with the neck, but again I don't believe those affidavits are sufficient[ly] detailed to stand up to the test of competent admissible evidence on the issue of causation. You know, again I'm getting repetitive here, but the fact is is that these affidavits merely state that the injuries were caused by the accident, or secondary to the accident, and there's absolutely no basis for those opinions. So on the state of the evidence before the Court, at this point, I don't find that there are any material issues of fact as to causation or damages. There was insufficient evidence provided by [Perius], and therefore, the motion for summary judgment will be granted."

[¶7] In its written decision granting Nodak summary judgment, the district court explained the affidavits submitted by Perius "contain only unsupported, conclusory statements without any basis or support, and do not constitute competent, admissible evidence." The court also said Perius had "failed to comply with the scheduling order in this matter in a meaningful way with respect to disclosure of expert witnesses." The court further explained, "Nodak shall not be bound heretofore with respect to any action or ruling on [Perius's] claim against defendant Kessler." The court subsequently entered a default judgment against Kessler for $264,400.


[¶8] The district court said Perius had failed to comply in a "meaningful way" with a scheduling order to disclose expert witnesses, but the court did not exclude Perius's affidavits nor dismiss his action as a discovery sanction. See Wolf v. Estate of Seright, 1997 ND 240, ¶¶ 16-18, 573 N.W.2d 161 (stating trial court has discretionary authority to decide appropriate sanction for discovery violations and may exclude expert testimony outside scope of answers to interrogatories). Rather, the court decided Perius failed to provide competent, admissible evidence to raise a material issue of fact about causation and granted summary judgment for Nodak on Perius's claims for no-fault benefits and for uninsured coverage.

[¶9] The district court dismissed Perius's action by summary judgment, and we therefore review the court's decision under the requirements for summary judgment, which "is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no disputed issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law." Klimple v. Bahl, 2007 ND 13, ¶ 4, 727 N.W.2d 256. Evidence presented on a motion for summary judgment is viewed in the light most favorable to the party opposing the motion, and that party is given the benefit of all favorable inferences which reasonably can be drawn from the evidence. Halvorson v. Sentry Ins., 2008 ND 205, ¶ 5, 757 N.W.2d 398. Summary judgment is appropriate "'against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial.'" Id. (quoting Pulkrabek v. Sletten, 557 N.W.2d 225, 226 (N.D. 1996)). A party seeking summary judgment has the initial burden of showing that no dispute exists as to either material facts or inferences to be drawn from undisputed facts and that the movant is entitled to judgment as a matter of law. Halvorson, at ¶ 5. If the movant meets that initial burden, the opposing party may not simply rely upon the pleadings or upon unsupported conclusory allegations, but "'must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.'" Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D. 1991)).


[¶10] Perius's lawsuit against Nodak seeks recovery for no-fault benefits and for uninsured motorist coverage for damages allegedly caused by Kessler.

[¶11] Under N.D.C.C. § 26.1-41-06(1)(a), a "basic no-fault insurer of a secured motor vehicle shall pay basic no-fault benefits without regard to fault for economic loss resulting from... [a]ccidental bodily injury sustained... by the owner of the motor vehicle... [w]hile occupying any motor vehicle." "'Basic no-fault benefits' means benefits for economic loss resulting from accidental bodily injury," and "'[e]conomic loss' means medical expenses, rehabilitation expenses, work loss, replacement services loss, survivors' income loss, survivors' replacement services loss, and funeral, cremation, and burial expenses." N.D.C.C. § 26.1-41-01(2) and (7). To recover on his claim against Nodak for no-fault benefits under those statutes, Perius must "prove that [his] injuries qualify as 'accidental bodily injury,' which is injury 'arising out of the operation of a motor vehicle... and which is accidental as to the person claiming basic or optional excess no-fault benefits.'" Halvorson, 2008 ND 205, ¶ 7, 757 N.W.2d 398 (quoting N.D.C.C. § 26.1-41-01(1)).

[¶12] To recover on his claim against Nodak for uninsured motorist coverage, Perius must prove liability by an uninsured driver. See N.D.C.C. §§ 26.1-40-15.1(3) and 26.1-40-15.2(1). The parties do not dispute that Kessler was uninsured, and as an insurer providing Perius with uninsured motorist coverage, Nodak was entitled to "contest and press all defenses that the uninsured motorist could press." N.D.C.C. § 26.1-40-15.2(4). Uninsured benefits are not payable "[f]or damages for pain, suffering, mental anguish, inconvenience, or other noneconomic loss which could not have been recovered had the owner or operator of the motor vehicle responsible for such loss maintained the security required under any applicable state no-fault law." N.D.C.C. § 26.1-40-15.6(3). Under N.D.C.C. § 26.1-41-08, a plaintiff cannot recover non-economic damages from a secured person unless the plaintiff has suffered a "serious injury" which is defined by N.D.C.C. § 26.1-41-01(21), as "accidental bodily injury which results in death, dismemberment, serious and permanent disfigurement or disability beyond sixty days, or medical expenses in excess of two thousand five hundred dollars."

[¶13] In his negligence claim against Kessler, Perius must prove that Kessler owed him a duty, that Kessler failed to discharge that duty, and that Kessler's negligence proximately caused Perius "serious injury." See Klimple, 2007 ND 13, ¶ 5, 727 N.W.2d 256. "'A proximate cause is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred.'" Id. (quoting Rued Ins., Inc. v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D. 1996)). "When a defendant's negligence aggravates a preexisting injury, the defendant must compensate the victim for the full extent of the aggravation but is not liable for the preexisting condition itself." Klimple, at ¶ ...

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