STATE OF MINNESOTA
IN COURT OF APPEALS
League General Insurance Company,
a Michigan corporation,
a/k/a CUMIS General Insurance Company, a Michigan corporation,
Illinois Farmers Insurance Company,
a foreign corporation,
Filed October 12, 1999
Hennepin County District Court
File No. 97020708
Theodore K. Abe, The Law Center, 1625 Park Avenue, Minneapolis, MN 55404 (for appellant)
David A. Wikoff, John J. Laravuso, Flynn & Gaskins, L.L.P., 2900 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.[*]
On November 13, 1991, Joseph Williams was injured in an auto accident while riding as a passenger in a vehicle insured by League General Insurance Company, a/k/a CUMIS General Insurance Company (CUMIS). In 1996, CUMIS denied Williams's no-fault claim because Williams delayed four-and-a-half years in notifying the insurance company of his claim. On appeal from a summary dismissal, Williams argues the trial court erred by concluding the insurance company was actually prejudiced by his delay in notice and by failing to apportion the amount of prejudice, if any, actually suffered by the insurance company. We affirm.
Williams argues CUMIS was not actually prejudiced by his four-and-a-half year delay because it received constructive notice immediately after the accident, when the driver contacted them. See Minn. Stat. § 65B.55, subd. 1 (1998) (permitting insurers to prescribe period of not less than six months within which claimant must notify, by reasonable means, reparation obligor, but stating failure to provide notice will not render person ineligible to receive no-fault benefits unless actual prejudice is shown by reparation obligor). But Williams did not make this argument to the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (recognizing appellate court will generally not consider matters not argued and considered below).
In addition, the record demonstrates: (1) Williams suffered lower back pain as a result of a work injury as early as 1979 and underwent physical therapy; (2) in 1986, doctors discovered a bulging of Williams's L5-S1 intervertebral disc, and Williams subsequently underwent additional physical therapy for his back; (3) in March 1991, Williams underwent an exam, and applied for and began receiving social security disability benefits due to his back problems; (4) on November 13, 1991, Williams was involved in an auto accident that exacerbated his back injury; (5) on June 2, 1992, Williams underwent surgery for a herniated disc at L5-S1; (6) on February 21, 1993, Williams was involved in another auto accident that exacerbated his back injury; (7) on September 20, 1993, Williams underwent a second back surgery; (8) during the spring of 1995, Williams suffered a recurrent disc herniation; (9) on October 17, 1995, Williams underwent a third back surgery; (10) medical reports from various doctors reflect their difficulty in establishing the cause and effect of each injury; (11) on March 20, 1996, Williams applied for no-fault benefits with CUMIS for the 1991 auto accident; and (12) the insurance policy required written notice of any injury within six months from the date of the accident. Because Williams failed to give CUMIS an opportunity to investigate, conduct an independent medical exam, or defend the claim at or near the time of the accident, CUMIS was, as a matter of law, prejudiced by the delay and is entitled to summary judgment. See Mason v. St. Paul Fire & Marine Ins. Co., 82 Minn. 336, 339-40, 85 N.W. 13, 15 (1901) (concluding notice gives insurer opportunity for prompt investigation, protection from fraudulent or exorbitant claims, and ability to appraise claim while matter is fresh); Noon Realty, Inc. v. Aetna Ins. Co., 387 N.W.2d 465, 467-68 (Minn. App. 1986) (deciding seven-year gap was prejudicial because insurer's ability to investigate and defend claim was hampered).
Williams also argues the trial court erred by failing to apportion the extent to which CUMIS was actually prejudiced. See Minn. Stat. § 65B.55, subd. 1 (stating failure to provide notice that causes actual prejudice to reparation obligor will render claimant ineligible for no-fault benefits only to extent of prejudice). But Williams did not present any evidence contradicting the conclusion that CUMIS was completely prejudiced by his delay. See DLH, 566 N.W.2d at 69 (noting when motion for summary judgment is made and supported, nonmoving party must "present specific facts showing that there is a genuine issue for trial"). Under these circumstances, the trial court properly granted summary judgment in favor of CUMIS as a matter of law.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.