Injured in a Bicycle Accident?

The Rules of the Road for Minnesota Bicyclists that I should be aware of?  

There are very strict rules that you should know about when you ride your bike.

Minn. Stat. §169.222 OPERATION OF BICYCLE.;Subdivision 1.

Traffic laws apply.to every person operating a bicycle shall have all of the rights and duties applicable to the driver of any other vehicle by this chapter, except in respect to those provisions in this chapter relating expressly to bicycles and in respect to those provisions of this chapter which by their nature cannot reasonably be applied to bicycles.

Subd. 2. Manner and number riding.
No bicycle, including a tandem bicycle, cargo or utility bicycle, or trailer, shall be used to carry more persons at one time than the number for which it is designed and equipped, except an adult rider may carry a child in a seat designed for carrying children that is securely attached to the bicycle.

Subd. 3. Clinging to vehicle.
Persons riding upon any bicycle, coaster, roller skates, toboggan, sled, skateboard, or toy vehicle shall not attach the same or themselves to any street car or vehicle upon a roadway.

Subd. 4. Riding rules.
(a) Every person operating a bicycle upon a roadway shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:
(1) when overtaking and passing another vehicle proceeding in the same direction;
(2) when preparing for a left turn at an intersection or into a private road or driveway;
(3) when reasonably necessary to avoid conditions, including fixed or moving objects, vehicles, pedestrians, animals, surface hazards, or narrow width lanes, that make it unsafe to continue along the right-hand curb or edge; or
(4) when operating on the shoulder of a roadway or in a bicycle lane.
(b) If a bicycle is traveling on a shoulder of a roadway, the bicycle shall travel in the same direction as adjacent vehicular traffic.
(c) Persons riding bicycles upon a roadway or shoulder shall not ride more than two abreast and shall not impede the normal and reasonable movement of traffic and, on a laned roadway, shall ride within a single lane.
(d) A person operating a bicycle upon a sidewalk, or across a roadway or shoulder on a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal when necessary before overtaking and passing any pedestrian. No person shall ride a bicycle upon a sidewalk within a business district unless permitted by local authorities. Local authorities may prohibit the operation of bicycles on any sidewalk or crosswalk under their jurisdiction.
(e) An individual operating a bicycle or other vehicle on a bikeway shall leave a safe distance when overtaking a bicycle or individual proceeding in the same direction on the bikeway, and shall maintain clearance until safely past the overtaken bicycle or individual.
(f) A person lawfully operating a bicycle on a sidewalk, or across a roadway or shoulder on a crosswalk, shall have all the rights and duties applicable to a pedestrian under the same circumstances.
(g) A person may operate an electric-assisted bicycle on the shoulder of a roadway, on a bikeway, or on a bicycle trail if not otherwise prohibited under section 85.015, subdivision 1d; 85.018, subdivision 2, paragraph (d); or 160.263, subdivision 2, paragraph (b), as applicable.

Subd. 5. Carrying articles.
No person operating a bicycle shall carry any package, bundle, or article which prevents the driver from keeping at least one hand upon the handle bars or from properly operating the brakes of the bicycle.

Subd. 6. Bicycle equipment.
(a) No person shall operate a bicycle at nighttime unless the bicycle or its operator is equipped with (1) a lamp which emits a white light visible from a distance of at least 500 feet to the front; and (2) a red reflector of a type approved by the Department of Public Safety which is visible from all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of headlamps on a motor vehicle. A bicycle equipped with lamps that are visible from a distance of at least 500 feet from both the front and the rear is deemed to fully comply with this paragraph.
(b) No person may operate a bicycle at any time when there is not sufficient light to render persons and vehicles on the highway clearly discernible at a distance of 500 feet ahead unless the bicycle or its operator is equipped with reflective surfaces that shall be visible during the hours of darkness from 600 feet when viewed in front of lawful lower beams of headlamps on a motor vehicle. The reflective surfaces shall include reflective materials on each side of each pedal to indicate their presence from the front or the rear and with a minimum of 20 square inches of reflective material on each side of the bicycle or its operator. Any bicycle equipped with side reflectors as required by regulations for new bicycles prescribed by the United States Consumer Product Safety Commission shall be considered to meet the requirements for side reflectorization contained in this subdivision.
(c) A bicycle may be equipped with a front lamp that emits a white flashing signal, or a rear lamp that emits a red flashing signal, or both.
(d) A bicycle may be equipped with tires having studs, spikes, or other protuberances designed to increase traction.
(e) No person shall operate a bicycle unless it is equipped with a rear brake or front and rear brakes which will enable the operator to make a braked wheel skid on dry, level, clean pavement. A bicycle equipped with a direct or fixed gear that can make the rear wheel skid on dry, level, clean pavement shall be deemed to fully comply with this paragraph.
(f) A bicycle may be equipped with a horn or bell designed to alert motor vehicles, other bicycles, and pedestrians of the bicycle's presence.
(g) No person shall operate upon a highway any two-wheeled bicycle equipped with handlebars so raised that the operator must elevate the hands above the level of the shoulders in order to grasp the normal steering grip area.
(h) No person shall operate upon a highway any bicycle which is of such a size as to prevent the operator from stopping the bicycle, supporting it with at least one foot on the highway surface and restarting in a safe manner.

Subd. 6a. Operator age.
No person under the age of 15 shall operate an electric-assisted bicycle.

Subd. 7. Sale with reflectors and other equipment.
(a) No person shall sell or offer for sale any new bicycle unless it is equipped with reflectors and other equipment as required by subdivision 6, paragraphs (b) and (e) and by applicable regulations for new bicycles prescribed by the United States Consumer Product Safety Commission.
(b) Notwithstanding paragraph (a), a new bicycle may be sold or offered for sale without pedals if the bicycle otherwise meets the requirements of paragraph (a).

Subd. 8. Turning, lane change.
An arm signal to turn right or left shall be given continuously during the last 100 feet traveled by the bicycle before turning, unless the arm is needed to control the bicycle, and shall be given while the bicycle is stopped waiting to turn.

Subd. 9. Bicycle parking.
(a) A person may park a bicycle on a sidewalk unless prohibited or restricted by local authorities. A bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrian or other traffic.
(b) A bicycle may be parked on a roadway at any location where parking is allowed if it is parked in such a manner that it does not obstruct the movement of a legally parked motor vehicle.

Subd. 10. Bicycle events.
(a) Bicycle events, parades, contests, or racing on a highway shall not be unlawful when approved by state or local authorities having jurisdiction over that highway. Approval shall be granted only under conditions which assure reasonable safety for all participants, spectators and other highway users, and which prevent unreasonable interference with traffic flow which would seriously inconvenience other highway users.
(b) By agreement with the approving authority, participants in an approved bicycle highway event may be exempted from compliance with any traffic laws otherwise applicable thereto, provided that traffic control is adequate to assure the safety of all highway users.

Subd. 11. Peace officer operating bicycle.
The provisions of this section governing operation of bicycles do not apply to bicycles operated by peace officers while performing their duties.

Copyright © 2017 by the Revisor of Statutes, State of Minnesota. All rights reserved.

The State of Minnesota has established several rules for insurance companies to follow when it comes to dealing with accident insurance payments. If you feel that an insurance company is being unfair, contact one of our bicycle injury attorneys immediately.

There are five insurance claims involved in an automobile or truck accident:
1. No-fault medical and wage loss claims.
2. Bodily injury claim.
3. Vehicle repair or replacement claims.
4. Uninsured motorist claims.
5. Underinsured motorist claims.

If you are able, do the following immediately:
1. Get out of your vehicle to solicit help and information from the other driver.
2. Call the police immediately and ensure a report will be made regardless of the extent of damage to the automobile or the injuries to the drivers and passengers.
3. Obtain the name of the other driver(s), passengers and witnesses.
4. Obtain the information of the other driver's insurance information, home address, and phone number(s).
5. Seek medical treatment immediately.
6. Call your insurance company to inform them of your accident. They will provide you with an adjuster assigned to your case and a claim number which can be used for billing of medical expenses. If you are injured in an auto/truck crash, you should have your medical treatment billed to your no-fault automobile insurance rather than your health insurance. If your bills exceed $20,000, then have your medical treatment billed to your health insurance.
7. Contact an attorney to ensure your right to recovery is protected.

Unless you or the at-fault driver have personal property protection in your insurance policy, you will not be reimbursed for personal objects damaged inside your car or bike as a result of the crash.

Your medical bills and losses should be covered by the insurance provider of the at-fault party. If there is no party at fault, your medical expenses will be at least partially covered by your own car insurance policy through your personal injury protection coverage.

Minnesota Statutes require that your own car insurance policy provides at least $20,000 for medical care and $20,000 of wage loss protection to you if you are injured in a car accidents. You may have a higher level of coverage, though, depending on your specific automobile insurance policy. Talk to your insurance agent to learn more.

If you deserve more compensation or coverage for your industries, talk to a car accident injury lawyer. They'll ensure you're getting all of the financial support you're owed.

In 1974, the Minnesota Legislature passed the "Minnesota No-Fault Act." This ensures that victims of car accidents can quickly and easily receive financial help through their own automobile insurance - regardless of their fault or innocence in the crash. This is applicable to passengers, pedestrians, and other drivers who were injured regardless of their role in the collision.

Under no-fault insurance, you are entitled to:

1. Wage loss benefits
2. Medical treatment bills
3. Replacement services
4. Survivor benefits

The Minnesota Legislature created "tort thresholds" for the laws on automobile accident claims. State law requires that before a victim (or their survivors) can sue the at-fault driver, they must meet one of the following requirements:

1. They have incurred over $4,000 in medical expenses; OR
2. They have suffered a permanent injury that will continue throughout the victim's life (but it might improve or worsen); OR
3. They have suffered from a permanent disfigurement, which changed the victim's appearance to a significant degree; OR
4. They have suffered from a disability for at least 60 days. A doctor must confirm that the victim's injuries have significantly impacted the victim's work, home, or social activities; OR
5. They have died as a result of the accident.

Underinsured and uninsured motorist coverage is required byin the Minnesota No-Fault Act.

If an uninsured driver injures you, your own insurance provides coverage for your bodily injury damages (such as pain, suffering, and permanent injury) through the uninsured motorist coverage portion of your own automobile insurance policy.

Similarly, if the at-fault driver's insurance policy does not provide adequate coverage to compensate you for your injuries, you can be compensated through your own underinsured motorist coverage for a shortfall in coverage.

How much money is available from my no-fault insurance to cover my medical expenses?                                                                               

The amount of coverage you have for medical expenses in the event of an automobile crash depends on the amount of coverage you carry through your insurance policy. Minnesota Statues 65B.44 requires at least $20,000 to be paid to you for your no fault medical expenses from you own auto insurance policy as a result of a car accident. You can purchase higher levels of no fault coverage and should discuss this with your agent.

Where can I obtain treatment?
Once you have called in your claim to your own automobile insurance company you will be assigned a no-fault adjuster, and you will be given a claim number that you may use for your treatment at any medical office or hospital. You are not required to use a specific provider or clinic. You will not be using your personal health insurance unless you have no automobile insurance coverage or your no-fault benefits have been used up or denied.

What does it mean that no-fault covers reasonable and necessary medical expenses?

Minnesota law requires that no-fault automobile insurance pay for medical expenses that are reasonable and necessary such as: medical, surgical, x-ray, optical, dental, chiropractic and rehabilitative services, prosthetic devices, prescription drugs, necessary ambulance and all other reasonable transportation expenses incurred in traveling to receive covered medical benefits, hospital, extended care and nursing services. Also included are physical rehabilitation treatment and occupational training. All of the above care and treatment must be for injuries resulting from the motor vehicle accident. [Minnesota Statutes 65B.44]

Can I also be compensated for mileage and parking expenses incurred when I go to my medical treatment?

Minnesota law requires that mileage to and from treatments and parking costs must be reimbursed as "reasonable transportation costs." These are actual costs to claimant and most often are paid at the IRS rate of 56 cents per mile (2021), unless you can document higher costs that are reasonable. You are also entitled to reimbursement for the work hours you miss when you have to attend medical, physical therapy or other medically related appointments. The medical treatment must relate to your accident.

What if I need occupational therapy and/or rehabilitation? 

You must provide notice to the insurance carrier within sixty days of incurring $1,000 or more of rehabilitation expenses, or the available benefits may be limited to $1,000.  In addition, an insurance company may pay for a vocational program only in order to save wage loss payments. If you can no longer work at a heaving lifting job, an insurance company may pay for vocational training or occupational training in order to get the person back working at a different job.  It is important for you to see a medical doctor of your choosing as soon after the accident as possible. Although treatment with a Chiropractor is useful and can assist you greatly with healing, especially with soft-tissue back and neck injuries, we have found that insurance companies are more likely to pay fair compensation for a claim if the injured person has also treated with a medical doctor.

Who should be in charge of my medical care?

Your medical doctor should direct your care. Follow your doctor's orders and ask your doctor's opinion about the need for chiropractic treatment or physical therapy. Return to your medical doctor periodically during healing so that your doctor is informed about your injuries and will be able to write a letter for you later as to the extent of your injuries. Chiropractic treatment should be balanced with medical treatment. And both forms of treatment should be covered under your no fault insurance.

NO FAULT INSURANCE WILL COVER LOST WAGES:

You are entitled to at least $20,000 in lost income replacement through your no-fault insurance. [Minnesota Statutes 65B.44] However, no-fault will pay only 85% of your gross income up to a maximum of $500 per week. You may be able to make up any shortfall later on through your bodily injury claim against the at-fault driver.

For example: If you make $200 per week you will receive only 85% of $200 which is $170. This is the maximum your no-fault insurance will pay based on $200 per week. Therefore, you will lose $30 per week. Later on you may be able to sue the at fault driver for this $30 per week shortfall. However, if you make a $1,000 per week, the maximum you will receive is $500 per week.

What do I have to do in order to receive wage loss benefits through no-fault?

1. You must present a doctor's disability slip to your no-fault adjuster (permission to miss work for medical reasons), AND
2. Proof of wage loss must be provided by your employer (your no-fault adjuster will ask you to sign authorizations and will obtain that information directly from your employer).  Be sure to pay close attention to your wage rate and if you have qualified for a pay raise since your injury. Since your wage loss will be calculated based on what you were making for a period of time prior to the crash, you will want to pay close attention to the wage rate that your no-fault insurer is using and confirm that it is accurate. If you can document that a new, higher wage rate has gone into effect for you, or that you had a history of accepting all overtime work and overtime work is now available, it could affect the calculation.

Am I able to receive wage loss benefits if I am only able to return to work part-time?

If you are only able to return to your full-time job on a part-time basis, you may be entitled to continue to receive partial benefits if your disability prohibits full-time return to work.  If you receive short-term or long-term disability coverage you may still be able to qualify for additional compensation for your wage loss shortfall through no-fault.  Depending on the language in your automobile insurance policy, you may be entitled to additional wage loss compensation through your no-fault insurance. Consult your no-fault adjuster or your attorney to determine if you qualify.

If I was receiving unemployment benefits at the time of the accident, but because of the accident I am no longer eligible to receive those benefits, can I receive compensation through no-fault?

You are eligible to receive no-fault wage loss at 100% of your previous unemployment rate, with a maximum benefit of $500 per week.

If I own a small business and have had to hire substitute employees, will I be compensated for this expense?

Costs incurred for substitute employees to perform tasks which are necessary to maintain the income of the injured person and which are normally performed by the injured person, but cannot be performed because of the injury, may be reimbursed up to $500 per week.

Will I get paid for the time I had to miss work because I had to go to a doctor or other accident-related treatment?

You may also be entitled to reimbursement for reasonable travel time and expenses involved in getting to and from the medical treatment. Ask your attorney or your no-fault adjuster. Keep a travel journal in order to track your time and mileage related to your medical treatment.

REPLACEMENT SERVICES OR HOMEMAKER SERVICES:

Your insurance may cover the cost of hiring someone to complete household tasks if you are unable to do so as a result of the injuries you sustained in an automobile crash.

To qualify for no fault replacement services, the claimant is not required to be a full-time homemaker, nor does she/he need to show out-of-pocket expenditures. You can receive up to $200 per week for replacement services such as housecleaning, child care, yard work and snow removal, even if the homemaker was or is employed outside the home. The person completing these services does not need to be a licensed provider of services. Rather, the provider of replacement services can be your spouse, adult child, another family member or even a friend. [Minnesota Statutes 65B.44]

When will my no fault insurance pay for this benefit ?

This benefit does not kick in right away, however. This benefit is calculated as follows:  There are no replacement benefits paid until eight days after the accident. The benefits start on day EIGHT. These benefits are subject to maximum compensation of $200 per week. 

How do I prove up the time spent on doing the activities that I can't do any longer and that I have had to hire someone else to perform? 

Be sure to keep close track of your costs for replacement services.  Sit down and make a list of activities you performed before the injury and the time involved. Then add to that list the activities you cannot do as a result of the accident and add the name of the person now performing those tasks, and the time involved as well as any cost to you.

What does "reasonable value" of services mean?

If your spouse or someone close to you is now performing replacement services, you may pay them with a check for the "reasonable value" of the services. Give that information to your no-fault adjuster, who will reimburse you. "Reasonable value" would be considered the hourly "going rate" for work described above and in most regions $10.00 to $15.00 per hour is an acceptable "going rate." Ask your adjuster if the going rate is higher than $10.00 per hour.

SURVIVOR BENEFITS

If your loved one has died as a result of a crash that was the fault of another driver, you have an immediate right to sue to the at-fault driver and are entitled to no-fault economic loss survivor benefits to begin compensating you and your family for your loss.

No-fault coverage provides coverage for funeral expenses:

The Minnesota No-Fault Act provides for up to $5,000 for funeral expense coverage to include such items as casket, burial, flowers and an organist.

No-fault provides wage loss benefits:

No-fault wage loss benefits may provide compensation to your family for the loss of an individual who was an economic provider for your household.  If your deceased loved one was an economic provider for your family, your family may receive up to $500 per week for a maximum of $20,000 in survivor's no-fault wage loss benefits.  Other contributions of money or economic value (not including services) the surviving dependents would have received from the decedent are also reimbursable to the surviving family members through no-fault benefits. Also included in the category of economic value are the following tangible items: insurance benefits, disability coverage, pension and Keogh plan, proceeds of household business such as crafts or day care, routine household services, and expenses for wages to compensate a replacement worker for running a business.

YOUR NO FAULT INSURANCE CAN TERMINATE YOUR NO-FAULT BENEFITS:

The following are a number of reasons why your no-fault benefits may be terminated:
1. You have experienced similar complaints and injuries prior to the accident.
2. Your early symptoms are inconsistent with later treatment.
3. The medical records document that your symptoms have greatly improved.
4. You fail to follow medical recommendations for follow-up visits, self-care, exercise, etc.
5. You have long periods where you have not treated with a medical doctor or physical therapist or chiropractor.   
6. You have a lack of objective findings. In other words, you have no way to prove the extent of your injuries through your medical records and are relying solely on your own testimony.
7. You go to a doctor for health care unrelated to your accident and the medical records from that visit document that the "affected areas" (those injuries caused by the accident) are normal.
8. You failed to report your injuries immediately after your crash or received no treatment for several weeks or months after the accident.
9. After 9 months to a year, you have experienced no improvement with medical care. If this is the case, the insurer will likely terminate the benefits because they will argue that the treatments are not beneficial or that you have reached "maximum medical improvement."
10. You have had unusual treatment techniques, or unusually expensive or extensive treatment techniques.
11. Your medical professional over-treats you, such as recommending treatments 3-5 times per week.
12. You have not treated for over one year.
Your no-fault insurer can usually cut you off from benefits if you there is a one-year lapse in treatment or disability.

WHEN IS TERMINATION ALLOWED BY LAW?

Termination is allowed when the insurer can show that the policy contains a one-year lapse provision and there was a one-year lapse in the treatment or disability. The no-fault insurer must notify you in writing sixty (60) days before the one-year lapse. It is important to have a yearly checkup to monitor your condition.

WHAT IS AN IME?

After providing no-fault benefits for a period of time, the insurer can demand that the injured person attend an IME. This "independent" medical examination is always paid for by the no-fault insurer with the goal of cutting off the injured person's no-fault benefits. By law you are required to attend an IME, if requested.

ARBITRATION IS THE ONLY METHOD FOR CONTESTING A TERMINATION OF NO-FAULT BENEFITS:

If your benefits are terminated, you may have the right to file a claim for arbitration with the American Arbitration Association.
At the time the arbitration is filed, the unpaid benefits must total less than $10,000. Your attorney will assist you with arbitration. If the unpaid amount is over $10,000, your attorney can file a lawsuit against your no-fault insurance company.  If your no-fault benefits are cut off, you must use your private health insurance for the payment of your medical bills related to the crash. It remains important that you continue treating your injuries if you are still suffering symptoms in order to prove up your claim for bodily injury against the at-fault driver.

If you have more than one automobile we strongly recommend that you purchase "stacking" insurance coverage. You can purchase stacking coverage for a nominal fee, and doing so will double the amount of no-fault coverage you can collect from your insurance in the event of an accident. This is especially beneficial for drivers who do not have medical insurance, because it provides affordable extra protection in the event of severe injury from a major crash. Stacking only applies to your no-fault coverage and does not apply to your liability, uninsured, or underinsured coverage.

The No-Fault act does NOT cover the following when it comes to vehicle accidents in Minnesota: [Minnesota Statutes 65B.59, 60]
1. Injuries suffered while riding, mounting or alighting from a motorcycle. (Motorcycle owners have to buy specific motorcycle no-fault insurance coverage.) If you own a motorcycle we strongly recommend that you purchase no-fault coverage to ensure that you are protected if you are injured.
2. Intentional injuries (unless the injuries are not intended by the victim).
3. Injuries suffered in the course of an official racing contest.
4. Vehicle owners who are not insured.

There is no requirement that auto insurance companies provide no-fault coverage on motorcycle policies unless you request an additional policy.  You need to talk with your insurance agent about adding no-fault coverage to your motorcycle policy if you wish to be covered in Minnesota 

This is insurance that requires "fault" to be found. If you are in an accident and it is not your fault, or a loved one has been injured or killed by someone else's careless driving, you have a right to make a claim against that driver's liability insurance. Before you are allowed to make that claim, you must meet one of five thresholds. A bodily injury claim is filed against the insurance company of the driver found to be at fault, or negligent, in the accident or against the at fault driver individually. These claims cover any injured party, including the at-fault driver's passengers, pedestrians, or occupants of another vehicle involved in the crash.

In Minnesota, all drivers must buy liability insurance of at least $30,000 for injuries to one person and $60,000 for injuries to two or more people and $10,000 for property damage. Injured parties can be reimbursed for the expenses incurred from the liability insurance and or the at-fault driver's assets including past and future medical bills and lost wages; permanent injury; and past/future pain and suffering.

Often, bodily injury claims are settled out of court, but other times they are brought before a jury. The experienced personal injury lawyers at Lord + Heinlein have helped thousands of clients get settlements they deserve, and to get their lives back on track.

How is my personal injury claim valued?

Establishing the value of a personal injury claim is similar to establishing the value of a home for sale. In the real estate business, agents keep track of similar sales in various areas. Lawyers and insurance companies also keep track of similar trial verdicts and settlements that are accessed and compared to the injuries of each client. The value cannot be established on the day of the injury, but rather once the injured person has finished treating and reached "maximum medical improvement."

There are many issues to be considered once the claimant heals such as the total past and future loss of wages, cost of medical expenses, pain and suffering. Most importantly, since the medical record is relied on as proof on injuries and damages, it is important that you treat any injuries that you sustained in the accident immediately, and follow the treatment directives of your medical provider

There are a number of factors that go into determining the value of your case. First, it is important to understand the risks of going to trial vs. settling your claim out of court.

Should I settle or go to trial?
Once your case is ready for settlement or litigation, you can proceed to resolve your case through a settlement or, if settlement is unsuccessful, through trial. The attorney may choose to send a letter to the defendant and/or the insurance adjuster making a demand for a payment of a particular amount of money to resolve the claim. If negotiations for settlement prove unsuccessful, the attorney and the client will discuss the client's options and will make a decision to either accept the final offer or put the case into suit and go to trial.

How does my attorney start my lawsuit?

Litigation begins when the attorney serves a summons and complaint on the defendant. Then, the defendant will answer. Once the discovery phase of the case is completed, your case will likely proceed to mediation and at that time have another opportunity to settle the case before trial begins. If mediation is not successful, we proceed to trial.

What are the factors that should be evaluated to help decide whether or not to take my case to trial?

1.  How would a jury decide?
The insurance companies win the majority of personal injury trials in Minnesota. Juries tend to find for the defendant between 55-60% of the time. So, in deciding whether to go to trial, it is important to be familiar with the strengths and weaknesses of your case not only from a legal perspective, but from the perspective of the average juror as well.

2.  How much insurance coverage is available?
In almost all cases, you can recover only up to the amount of the liability coverage carried by the person who caused your injury. If you go to trial and the jury awards you, for example, $50,000 but the defendant has only $30,000 in liability coverage, you can only recover the $30,000 that is available on that policy. An injured party can successfully sue for the defendant's assets only if the defendant has assets other than a home (primary residence). And, even if you are able to obtain a judgment against the at-fault defendant's personal assets, collecting on that judgment also poses its own set of difficulties since the court will not do that for you.
In the above example, you may also make a claim for underinsured benefits on your own policy to cover the $20,000 shortfall.

3. How strong are your legal arguments for liability/negligence:
Your attorney will be able to educate you on the strength of the legal arguments for your case. One of the way to determine the strength of your case is to answer the questions that a jury my answer at the end of the trial.  After the trial is completed the jury is brought into the jury room where they are given the following series of questions to answer:

4. Was the defendant negligent (at fault for the accident)?
Being a member of society requires that we all act, drive, and maintain our vehicle in a responsible way. The jury must consider whether the defendant (at fault driver) breached his/her duty of acting responsibly to his/her fellow citizens. Driving through a red light is clearly a breach of that duty, hence negligence. A questionable case is when a driver rear-ends the car in front of him/her because the driver in front of them made a very sudden stop. It would appear that that driver had no choice.

5. Was the plaintiff (you) in any way at fault or partially responsible for the accident?
This concept is known as comparative fault. In Minnesota, a jury is asked to determine percentages of fault. For example, if they determine that the plaintiff has some degree of fault such as 15% and Defendant has 85%, the Judge is then required to deduct the 15% of Plaintiff's fault from the total award. However, if the jury attributes the plaintiff with 51% or more of the fault, the plaintiff loses the entire case and must pay the defendant's costs and expenses of having to go to trial.

6. Was the defendant's negligence what caused harm to plaintiff (you)?
The jury must then decide whether the defendant's negligence (driving through a red light and hitting your vehicle) was the cause of plaintiff's injuries such as a broken arm.

7. What is the severity of the damage sustained by the plaintiff (you)?:
1. Past and future medical treatment costs; the jury must consider past medical treatment expenses and if a doctor can document that you will need future medical treatment and can prove the cost of that treatment, those costs will be considered as part of your damages.
2. Past and future pain and suffering; pain and suffering is a subjective consideration of the injured person's claim that a jury will address.
3. Past and future lost wages; if you have missed a lot of time from work as a direct result of the injury, the loss of wages, both in the past and in the future will be considered in the value of your claim.
4) Trial is a very lengthy process and can be very stressful for some plaintiffs and their families..  If you take your case to trial you will need to go through the long and arduous process of litigation. You will need to have your deposition testimony taken before trial, and, at trial, you will need to testify on the witness stand. The defendant will do everything they can to discredit you and your testimony, which can be very difficult and stressful.

Are there laws in Minnesota that discourage plaintiffs from going to trial?
There can be a number of adverse consequences for plaintiffs that choose not to settle their case and take it to trial instead, even if they "win" at trial. The Minnesota legislature has devised several ways to prevent a plaintiff from bringing a frivolous lawsuit. These series of laws are known as tort reform laws. Plaintiffs in Minnesota have some of the most severe consequences of any state if they lose at trial and these tort reform laws act as effective deterrents to bringing unworthy claims and oftentimes encourage plaintiffs to settle their claims out of court.

The following are rules that will be explained by your attorney before deciding to go to trial:

• Collateral Source Rule:
Minnesota law requires the Judge to deduct from the jury verdict award all of the collateral source payments (all other sources of benefits that have been contributed to your care as a result of this accident). Collateral source payments consist of the following:
1. All no-fault benefits received;
2. All contributions made by your health or dental insurance to pay for your medical care;
3. Worker's compensation payments your received for your injuries if the incident occurred at work;
4. Disability payments not directly purchased by you.                                                                                                                                                            5..Your health insurance has a right of subrogation (to be reimbursed for the money they paid for your care).:

If your health insurer has covered any of your medical expenses as a result of this accident, the law allows them to be reimbursed in full unless they fall into an exception. The exception is found in Minn. Stat. 62A.095, Subd. 2(1), which provides that a subrogated medical provider cannot receive reimbursement until the covered person has received "full recovery." If you have received 'full recovery' by law, such reimbursement must be paid out of your share of the recovery.

• Rule 68 Offer of Judgment:
Sometimes the plaintiff can lose at trial even if he/she wins at trial. By law, before trial begins, the defendants can make a formal written Offer of Judgment (final settlement offer) to the plaintiff, pursuant to Civil Procedure Rule 68, in order to settle the case. An Offer of Judgment is kind of like raising the stakes. The plaintiff can refuse to accept defendant's Offer Of Judgment and choose to go to trial. However, the plaintiff must net a total award (that means after comparative fault and collateral source deductions mentioned above) greater than that Offer of Judgment otherwise the plaintiff will be on the hook to pay for the defendant's costs and expenses in trying the case. 

Would you please give me an example of winning at trial but losing because of a Rule 68 Offer Of Judgment?
1. $10,000 Offer of Judgment (Made by Defendant Prior To Trial)
2. $9,500 Jury Award.

Since the jury award is $500 less than Offer of Judgment, according to the rule, although the plaintiff won their trial, they will still will have to pay defendant's costs and expenses in trying the case. Trials are expenses and the opposing party's costs and expenses could easily be $10,000 or more. 

What do I owe if I lose at trial?
When plaintiffs lose at trial they must pay all the defendant's costs and expenses (case expenses). When plaintiffs lose a personal injury case against an insured defendant, the insurance companies routinely obtain such a judgment against the plaintiff for the insurance company's  costs and expenses of the case regardless of the plaintiff's financial situation. In addition, if the plaintiff loses at trial, he/she, depending on the agreement with their attorney, may also have to pay their own case costs/expenses incurred during the litigation. Case expenses and costs go up drastically once the decision is made to go trial. For instance, you will need to retain an expert to testify on your behalf, which often costs as much as $3,000 or more.

How can I decide whether to settle or go to trial?

This is something that should be carefully discussed and considered with an attorney. 
Below are some sample calculations to illustrate a plaintiff's take home award with settlement vs. trial:
Needless to say, going to trial with these severe consequences for losing should make all plaintiffs carefully consider the advantages of settlement. The following sample calculations have been put together to show the difference between what a plaintiff can expect to get at trial versus what he/she may take home in the case of settlement.

Assume the following facts:
1. Liability insurance limit (defendant's total insurance coverage) is $30,000.
2. Liability insurance adjuster has offered $15,000 to settle your case.
3. Plaintiff (you) will be found 5% ot fault by a jury.
4. Plaintiff (you) has been paid some collateral sources, as follows:.  Collateral Sources have been paid such as the following:.
1. Health insurance paid – $1,200
2. Work Comp/Disability payments paid – $ 1,000
3. No-fault benefits paid – $ 5,000
4. Total Collateral Sources paid- $ 7,200 

        5. Consider the amount of the case expenses that are owing

            1. Case expenses before trial starts – $ 800 and after trial they will be $5,000

6. Imagine that if you go to trial you will obtain a jury verdict of $30,000.  

7. What are the approximate deductions that will be taken from my jury verdict award?   
1. 5% Comparative Fault – $1,500
2. All Collateral Sources Deducted – $7,200
3. Attorney's Fees of 1/3 of the $30,000 verdict -$10,000
4. Case Expenses -$5,000
5. Total Deductions – $23,700
6. THE NET AWARD TO PLAINTIFF (YOU) AT TRIAL IS $6,300

8. What are the deductions that will be taken if I accept a settlement offer of $15,000?
1. Attorney's Fees of 1/3 of the settlement of $15,000 – $5,000
2. Health Insurance To Be Paid Back (Subrogation) – $1,200
3. Worker's Comp Payments – $1,000
4. Case Expenses -$800
5. Total Deductions – $8,000
6. THE NET TO PLAINTIFF (YOU) IS: $7,000

In the case of settlement, plaintiff does not have to deduct any collateral sources or percentage of fault from the settlement. However, health insurance payments and worker's comp payments must still be reimbursed so they are deducted anyway. Plaintiff receives a net award almost as much as he/she would at trial without the risks and stress of trial and without the 5% deduction of comparative fault or the deduction for no-fault benefits of $5,000. And the settlement is paid now, while a trial can take up to two years from start to finish.

While there are circumstances where trial is appropriate, it is important to fully understand the reality of the risks associated with trial in order to best weigh whether or not it is the best course of action for you, your family and the outcome of your claim. Your attorney will explain these risks in greater detail as they relate to your specific case.

What is required to bring a wrongful death claim in Minnesota?

The following basic elements must be present:

1. A person dies.
2. The person's death was caused by the wrongful act or omission (negligence) of any person or corporation.
3. A trustee must be appointed by the court to pursue the case. Recovery may include compensation for the economic loss to the surviving spouse and next of kin resulting from the death.
4. Once the claim is resolved, the court then determines the proportionate pecuniary loss of the next of kin entitled to the recovery and calculates the distribution of the recovery.

Why must a Trustee be appointed by a Judge in a wrongful death claim?  

Appointment of Trustee: A district court judge must appoint a trustee who represents all the next of kin and will sue out the case against the wrongdoer. The following steps must be followed:
1. All potential next of kin are identified and contacted and they usually agree on the person to serve as trustee. The Trustee should be a person the jury and the next of kin can trust to properly invest and distribute any recovery in a fair and impartial manner for all the next of kin.
2. Pursuant to Minnesota Rules of Civil Procedure 144, a petition must be prepared by the attorney seeking approval from the district court to have the agreed upon person appointed trustee.
3. All heirs should receive notice of the Petition and the hearing date. If there is no dispute as to the appointment of the trustee, the heirs will sign a Waiver of Notice for hearing and bond and there may be no need to have a hearing. The decision whether to have a hearing is within the discretion of the Court.
4. The Trustee must sign an oath to faithfully perform the duties of trustee and represent all of the next of kin.
5. The petition, which is signed by the petitioning heir and the petitioning trustee, is forwarded to the court along with a proposed order appointing a trustee.

How does a lawsuit get started if there has been a wrongful death? 

A Lawsuit MUST be brought by a Trustee who has been appointed by a Judge: The appointed Trustee representing all the next of kin, starts the lawsuit against the person or company at fault.

1. The Trustee must hire an attorney to represent heself or himself..
2. The attorney begins the case on behalf of the Trustee against the at fault party by serving a summons and complaint against the at fault person.
3. The Trustee represents the spouse and next of kin who have a claim for pecuniary loss. This includes all the decedent's children, parents, siblings of the decedent, grandparents and descendants of grandparents. Parents may recover for the wrongful death of a child even if the child is emancipated and/or married. If the surviving spouse remarries during the case, it is not relevant to their recovery.
4. If the at fault person has died, the Trustee sues their estate.

Are there time limitations involving a wrongful death lawsuit?:
The time within which to bring a claim for wrongful death is 3 years from the death and no longer than 6 years from the incident. However, if a possible dram shop claim exists, the time limit in which to bring a claim is two years for the date of the incident. A notice must be sent to the establishment where the individual was served alcohol within 240 days of hiring the attorney.

How does the Trustee decide how to divide up the award?  
If there is a settlement of the case, the Trustee will bring the amount of the settlement and the amounts to be paid to each next of kin to the Judge who must approve it. (MRCP 114). The court hearing the petition for disbursement shall approve, modify, or disapprove the proposed disposition and shall specify the persons to whom the proceeds are to be paid.

The petition for distribution will be heard upon notice, given in form and manner and upon such persons as may be determined by the court, unless waived by all next of kin or the court.

The court by order will direct distribution of the money to the persons entitled thereto by law pursuant to JIG 91.75