may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State Farm Insurance Companies,
Filed December 8, 1998
Reversed and remanded
Hennepin County District Court
File No. 981910
Kermit N. Fruechte, William Kvas, Hunegs, Stone, Koenig, LeNeave & Kvas, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellant)
Richard J. Newcome, Richard N. Newcome & R.J. Newcome, P.A., 1360 Energy Park Drive, Suite 150, St. Paul, MN 55108 (for respondent)
Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant Glen Northrup seeks reversal of adverse summary judgment on the issue of whether he is entitled to income loss benefits under Minn. Stat. § 65B.44 (1996) due to his injury. Because we find that there is an issue of material fact as to whether Northrup's income decreased as a result of his inability to work as a laborer, we reverse and remand for trial.
(before 7/2/93 accident only)
(4/93 - 7/2/93 and 10/25/93 - 12/31/93)
Northrup commenced this action under his State Farm automobile insurance policy to recover no fault lost income benefits due to his post-injury inability to work as a laborer. In support of his claim, Northrup presented his own deposition that indicated a drop in his income from 1993 to 1994 and his son's affidavit detailing how much income Northrup earned as a laborer before the injury and how much laborer income he would have earned afterwards but for his injury.
On State Farm's motion, the district court granted summary judgment because it found that Northrup did not lose income. Northrup appeals, arguing that the district court erred in applying section 65B.44 and in finding that his income increased after his injury.
Disability and income loss benefits shall provide compensation for 85 percent of the injured person's loss of present and future gross income from inability to work proximately caused by the nonfatal injury subject to a maximum of $250 per week. Loss of income includes the costs incurred by a self-employed person to hire substitute employees to perform tasks which are necessary to maintain the income of the injured person * * *.
* * * *
Compensation under this subdivision shall be reduced by any income from substitute work actually performed by the injured person or by income the injured person would have earned in available appropriate substitute work * * *.
Minn. Stat. § 65B.44, subd. 3 (1996).
To determine whether an insured can receive lost income benefits, the court must compare the insured's pre-injury income with his post-injury income. See Rindahl v. National Farmers Union Ins. Co., 373 N.W.2d 294, 299 (Minn. 1985). The insured must show that he would have earned income, not merely that he should have earned income. McKenzie v. State Farm Mut. Auto. Ins. Co. 441 N.W.2d 832, 835 (Minn. App. 1989). The self-employed insured must prove lost income by showing (1) costs for substitute employees, (2) loss of tangible things of economic value, or (3) loss of other earnings from work. Rindahl, 373 N.W.2d at 299.
Where an insured's post-injury income is more than the insured's pre-injury income, or when no lost income can be shown, no benefits are payable, regardless of any work lost. See Erickson v. Great American Ins. Co., 466 N.W.2d 430, 433 (Minn. App. 1991) (benefits are paid due to loss of income, not loss of work); Rindahl, 373 N.W.2d at 299 (Minn. 1985) (insured not compensated for inability to perform work on family farm because no income shown as lost).
Erickson involved an insured whose inability to perform a second job cleaning houses did not result in benefits because her total income increased. Erickson, 446 N.W.2d at 433. The district court determined that under Erickson, Northrup's income had increased and he was therefore not entitled to benefits after October 1993. It further found that Northrup did not lose income, but instead lost work, and lost work is not compensable under section 65B.44.
When interpreting "inability to work" under section 65B.44, a court must focus on whether the injury prevented the insured from returning to the job held before the injury. See Latzig v. Transamerica Ins. Co., 412 N.W.2d 329, 331-32 (Minn. App. 1987) ("injury which prevents a return to the prior job is an injury that is compensable"); see also Rindahl, 373 N.W. 2d at 298 (holding that for an insured to be eligible for benefits, the injury must prevent a return to pre-injury employment). Here, the record indicates that Northrup deliberately worked exclusively as a consultant during the three months immediately before the accident and resumed exclusive consulting work immediately after the accident. Northrup's son's affidavit and Northrup's deposition, however, provide evidence that Northrup did not cease working as a laborer and would have worked as a laborer again but for the accident. Viewing this evidence in a light most favorable to the non-moving party, see Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), we cannot say that Northrup was no longer a laborer for purposes of his eligibility for income benefits under section 65B.44.
Consequently, both Northrup's laborer earnings and his consultant earnings must be considered in determining lost income. Northrup presented evidence of steady earnings from his laborer work since 1989; he also showed a need to hire substitute laborers. Therefore, he demonstrated lost income. See Rindahl, 373 N.W.2d at 299 (self-employed insured must show loss of earnings from work or of tangible things of economic value or need to hire substitute employees to recover benefits). Northrup's son's affidavit says that but for Northrup's injury, Northrup would have had laborer income after the accident. Considering the facts in a light most favorable to Northrup, a genuine issue of material fact yet remains as to whether Northrup lost laborer income because of his injury. Therefore summary judgment is inappropriate.
Reversed and remanded.