Perius v. Nodak Mutual Insurance Co.

2010 ND 80, 782 N.W.2d 355, 2010 N.D. LEXIS 91, 2010 WL 1875738
CourtNorth Dakota Supreme Court
DecidedMay 11, 2010
Docket20090239
StatusPublished
Cited by27 cases

This text of 2010 ND 80 (Perius v. Nodak Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perius v. Nodak Mutual Insurance Co., 2010 ND 80, 782 N.W.2d 355, 2010 N.D. LEXIS 91, 2010 WL 1875738 (N.D. 2010).

Opinions

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 Peri-us’s claimed damages were proximately caused by a motor vehicle accident, and we reverse and remand.

I

[¶ 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 No-dak, 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 Deceyiber [357]*35731, 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.” Peri-us 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. No-dak 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 Peri-us 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 Quasi and Dr. Kelly Remillard. Dr. Quast’s affidavit said Peri-us “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,-1 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, [358]*358and 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 suffieient[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.”

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Cite This Page — Counsel Stack

Bluebook (online)
2010 ND 80, 782 N.W.2d 355, 2010 N.D. LEXIS 91, 2010 WL 1875738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perius-v-nodak-mutual-insurance-co-nd-2010.