Piatz v. Austin Mutual Ins. Co.

20010082 Janice A. Piatz and
Rebecca B. Johnson, Plaintiffs and Appellants
v.
Austin Mutual Insurance
Company, a corporation, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Lawrence A. Leclerc
Nature of Action: Insurance
Counsel:
Appellant: Lee Hagen Law Office, Ltd.
Appellee: McLarnan & Skatvold, PLLP
Term: 02/2002   Argument: 02/27/2002  2:45pm
ND cite: 2002 ND 115
NW cite: 646 N.W.2d 681

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Issues: Appellant's Statement of the Issues:
1. Did the court err in ordering separate jury trials to different panels regarding breach of contract and bad faith?
2. Did Austin Mutual waive its defenses that the benefits claimed by Piatz and Johnson were not reasonable or necessary?
3. Did the court err in excluding evidence of Dr. Fielden's volume of and income from prior independent medical examinations?
4. Is a medical doctor qualified to express opinions about whether chiropractic treatment is necessary?
5. Did the court err in finding and concluding Austin Mutual did not breach the contract as to either Piatz or Johnson? Specifically, were the following findings clearly erroneous: 10; 11; 12; 13; 14; 15; 17; 18; and 19.


Appellee's Statement of the Issues:
The findings of fact made by the trial court are not clearly erroneous and result from the opportunity of the trial court to judge the credibility of the witnesses.
Plaintiffs failed to object to the court order bifurcating the contract issues from the bad faith issues.
Austin Mutual did not waive its right to terminate the payment of no-fault benefits by its payment of benefits prior to termination.
The court did not err in excluding affidavit evidence concerning Dr. Fielden's prior independent medical examinations.
The court did not err in permitting Dr. Fielden to testify about future chiropractic care.

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Docket entries:
103/22/2001 NOTICE OF APPEAL: 03/21/2001
203/22/2001 ORDER FOR TRANSCRIPT: 03/21/2001
304/19/2001 RETENTION OF RECORD ON APPEAL: 06/19/2001
405/09/2001 MOT. EXT/TIME TRANSCRIPT
505/09/2001 ACTION BY TRIAL COURT. Granted: 06/19/2001
605/10/2001 Transcripts dated 5-3-99, 5-10-99, & 11-29-00 (3 volumes)
705/10/2001 DISK - (5-3-99; 5-10-99; & 11-29-00)(E-mail)
806/20/2001 RECORD ON APPEAL (3 volumes), Exhibits, & Depositions (3), which includes one video tape.
906/20/2001 Not rec'd with the ROA: #16,28,&72(Tapes) & 166 (Steno Notes)
1006/20/2001 TRANSCRIPT COMMENCING 12-11-00 (3 VOLUMES)
1106/21/2001 DISK - TRA (12-11-00; 12-12-00; & 12-13-00)
1207/19/2001 STAY PENDING BANKRUPTCY
1310/05/2001 Letter from Lee Hagen with attached copy of Discharge of Debtor in Bankruptcy
1410/05/2001 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
1510/05/2001 ACTION BY CLERK (sua sponte). Granted: 11/05/2001
1610/26/2001 MOT. EXT/TIME APPELLANT BRIEF
1710/26/2001 ACTION BY CLERK (MAT). Granted: 12/05/2001
1811/30/2001 APPELLANTS' MOTION FOR CORRECTION OF THE RECORD, BRIEF IN SUPPORT
1911/30/2001 NO ACTION TAKEN (referred back to the trial court -- originals returned to Mr. Hagen)
2012/05/2001 APPELLANT BRIEF
2112/05/2001 APPELLANT APPENDIX (missing Table of Contents)
2212/06/2001 MOT. EXT/TIME APPELLEE BRIEF; AFFIDAVIT IN SUPPORT
2312/06/2001 ACTION BY CLERK (MAE; w/understanding OA will be heard in February). Granted: 01/21/2002
2412/13/2001 Ltr from Leland Hagen indicating no objection to extension of time
2512/14/2001 DISK - ATB
2612/14/2001 Table of Authorities and page for ATB and Table of Contents for ATA
2712/20/2001 Supplemental Clerk's Certificate dated 12-19-01 (Entry Nos. 177-185)
2801/21/2002 APPELLEE BRIEF
2901/21/2002 APPELLEE APPENDIX
3001/23/2002 DISK - AEB
3102/07/2002 REPLY BRIEF (Dist. to Ct. & Law Clerk)
3202/07/2002 DISK - E-mailed RYB
3302/27/2002 APPEARANCES: Leland F. Hagen; Timothy J. McLarnan
3402/27/2002 ARGUED: Hagen; McLarnan (Vol. X; Page 207)
3502/27/2002 ORAL ARGUMENT WEBCAST
3607/11/2002 DISPOSITION: AFFIRMED
3707/11/2002 UNANIMOUS OPINION: Neumann, William A.
3807/11/2002 (CONCUR in the result): Maring, Mary Muehlen: CON/RES
3907/11/2002 Costs on appeal taxed in favor of appellee
4007/15/2002 Order/Judgment Mailed to Parties
4108/07/2002 MANDATE
4208/13/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4308/14/2007 EXPUNGED - Nonpermanent record items destroyed

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