Johnson v. Nodak Mutual Ins. Co.
| Decision Date | 22 June 2005 |
| Docket Number | No. 20040293,20040293 |
| Citation | 699 NW 2d 45,2005 ND 112 |
| Parties | Michele Johnson, f//k/a Michele Nelson, Plaintiff and Appellant, v. Nodak Mutual Insurance Company, Defendant and Appellee. |
| Court | North Dakota Supreme Court |
David A. Garaas, Garaas Law Firm, DeMores Office Park, 1314 23rd Street South, Fargo, N.D. 58103-3796, for plaintiff and appellant.
William P. Harrie, Nilles, Ilvedson, Stroup, Plambeck & Selbo, Ltd., P.O. Box 2626, Fargo, N.D. 58108-2626, for defendant and appellee.
[¶1] Michele Johnson appealed from a summary judgment dismissing her action for no-fault benefits against her motor vehicle insurer, Nodak Mutual Insurance Company, and from an order denying her motion for post-summary-judgment relief. We hold Johnson's action is barred by the four-year statute of limitations in N.D.C.C. § 26.1-41-19(1), and we affirm.
[¶2] Johnson was involved in separate automobile accidents in December 1996 and in February 1997. When the accidents occurred, Johnson had motor vehicle insurance, including basic no-fault benefits of $30,000, with Nodak Mutual. Nodak Mutual paid for Johnson's medical expenses for those accidents through July 20, 1998. Nodak Mutual declined to make payments for any medical treatment received by Johnson after July 1998. In August 1999, Nodak Mutual reiterated its decision not to pay for medical services received by Johnson after July 1998, but informed her that she could be re-examined by a physician chosen by Nodak Mutual and that she would need to complete a new authorization to release medical information. In September 1999, Johnson submitted an authorization to release medical information and a request for no-fault benefits to Nodak Mutual. In April 2000, Johnson received an independent medical examination from a physician chosen by Nodak Mutual, and Nodak Mutual paid for that examination in May 2000. Additionally, on November 9, 1999, Nodak Mutual paid for copies of Johnson's medical records; on March 27, 2000, it paid for a deposition transcript of her medical history under oath; and, on June 30, 2000, it paid for legal fees for obtaining her medical history under oath. Nodak Mutual thereafter did not pay for medical services for treatment incurred by Johnson. Johnson claims she informed her health care providers to submit their bills directly to Nodak Mutual, but the record does not reflect whether any bills were submitted to Nodak Mutual.
[¶3] By complaint dated September 24, 2003, Johnson sued Nodak Mutual, claiming she suffered post-traumatic myofascial syndrome and had incurred more than $19,000 in medical expenses as a result of the motor vehicle accidents. She claimed that Nodak Mutual's failure to pay for her medical expenses was a breach of contract and that she was entitled to indemnification for her reasonable and necessary medical and health care expenses for her injuries resulting from the motor vehicle accidents. She alleged Nodak Mutual required her to have an independent medical examination in April 2000, and her lawsuit was brought within four years after Nodak Mutual paid for that examination.
[¶4] Nodak Mutual answered, asserting it was not liable for Johnson's medical expenses incurred after July 20, 1998, because any "further medical and/or chiropractic care or treatment [was] not reasonable, necessary, remedial, nor causally related to the motor vehicle accidents." Nodak Mutual asserted Johnson's action was barred by the statute of limitations in N.D.C.C. § 26.1-41-19(1), because she failed to commence it within four years after the last payment of no-fault benefits. Nodak Mutual moved for summary judgment, arguing it had not paid Johnson any no-fault benefits since July 20, 1998. Nodak Mutual argued the independent medical examination performed in April 2000 was not for necessary medical treatment and therefore was not a no-fault benefit under N.D.C.C. ch. 26.1-41.
[¶5] Johnson resisted Nodak Mutual's motion for summary judgment, arguing she brought her action within four years after the last payment of benefits by Nodak Mutual. She claimed nothing in N.D.C.C. ch. 26.1-41 limited no-fault benefits to medical expenses for treatment alone. She argued the payments by Nodak Mutual in 2000 met the definition of medical expenses in N.D.C.C. § 26.1-41-01(9) and in the coverage and benefit provisions of Nodak Mutual's insurance policy, which required her to submit to a physical examination by a physician designated by Nodak Mutual. She thus argued those payments were benefits under the policy issued by Nodak Mutual.
[¶6] The trial court granted Nodak Mutual's motion for summary judgment, concluding Johnson's action was barred by the statute of limitations. The court concluded Nodak Mutual's payments for Johnson's independent medical examination and for the other related expenses for Nodak Mutual's own purposes were not necessary medical expenses and were therefore not no-fault benefits under N.D.C.C. ch. 26.1-41. The court concluded Nodak Mutual's payments for the independent medical examination and other related expenses did not toll the four-year statute of limitations for bringing an action for recovery of further benefits under N.D.C.C. § 26.1-41-19(1).
[¶7] Johnson moved for a new trial and for vacation of the judgment or relief from the judgment under N.D.R.Civ.P. 59 and 60. She argued the evidence was insufficient to justify the court's decision, because Nodak Mutual's insurance policy required her to submit to a physical examination before she could sue Nodak Mutual, and the policy created a contract or operated as a waiver for determining when the statute of limitations began running. She argued Nodak Mutual's payment for the cost of investigating her claim constituted a benefit under the insurance policy. She also claimed the judgment was not in accordance with the law or there had been a mistake of law, arguing: (1) her complaint was based upon a breach of contract and an action for breach of contract is controlled by the six-year statute of limitations in N.D.C.C. § 28-01-16; (2) her action accrued in April 2000 when she was required to attend an independent medical examination under the contractual provisions in her policy; (3) Nodak Mutual waived the time when an action accrued under N.D.C.C. § 26.1-41-19(1), or was estopped to rely upon that period under the terms of its policy; (4) there was no basis to distinguish between the payments by Nodak Mutual for the investigation of her claim and a payment for treatment; and (5) the damages she sought in her action were not "for recovery of further benefits" under N.D.C.C. § 26.1-41-19(1). The court denied Johnson's motion for post-summary-judgment relief.
[¶8] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.
[¶9] We review this appeal under our standards for summary judgment, which is a procedure for the prompt resolution of a controversy on the merits without a trial if the evidence demonstrates there are no disputed issues of material fact or inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545. Whether a trial court properly grants summary judgment is a question of law, which we review de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. The party resisting a motion for summary judgment may not simply rely on unsupported and conclusory allegations or denials in the pleadings; rather, that party must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact. Lawrence v. Roberdeau, 2003 ND 124, ¶ 7, 665 N.W.2d 719.
[¶10] Johnson argues her action is not barred by the statute of limitations. She claims her cause of action accrued no earlier than the independent medical examination in April 2000. She argues the language in the insurance policy that requires her to submit to a physical examination by a physician selected by Nodak Mutual before beginning a lawsuit operates as a waiver or estoppel to extend the statute of limitations. She argues there is no contractual or statutory basis to distinguish Nodak Mutual's payments for the independent medical examination from payments made for her medical treatment. She claims the independent medical examination and other expenses incurred by Nodak Mutual are "necessary medical . . . services" under N.D.C.C. § 26.1-41-01(9). She also argues her action for breach of contract is controlled by the six-year statute of limitations in N.D.C.C. § 28-01-16, because North Dakota's no-fault statutes provide for a cumulative remedy rather than an exclusive remedy. She further argues her action is not barred by the statute of limitations because of the continuing nature of her medical condition.
[¶11] Section 26.1-41-02, N.D.C.C., requires owners of motor vehicles registered in North Dakota to provide security for payment of basic no-fault benefits. Section 26.1-41-19, N.D.C.C., provides, in part:
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