author:
ANDERSON, RUSSELL A., Justice.
      GILBERT, Justice

text:
    Mariah PUSUSTA, Respondent, v. STATE FARM INSURANCE COMPANIES, Petitioner, Appellant.
    No. C8-99-1068.
    Supreme Court of Minnesota.
    July 19, 2001.

      Robert W. Roe, Thomas J. Lyons & Associates, P.A., St. Paul, for respondent.
    William M. Hart, Katherine A. McBride, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., Minneapolis, for appellant.
   OPINION

ANDERSON, RUSSELL A., Justice.

In mandatory arbitration, respondent Mariah Pususta sought no-fault medical expense benefits from her insurance carrier, appellant State Farm Insurance Companies (State Farm), for injuries she sustained in an automobile accident on December 6, 1997. We are asked to review the no-fault arbitrator’s legal conclusion, upheld by the district court and affirmed by the court of appeals, that the arbitrator is precluded from considering whether some of the claimed medical expenses were for injuries that resulted from a prior nonautomobile accident, and if so, whether reimbursement for such expenses should be denied. We reverse and remand.

Pususta was in an automobile accident on December 6, 1997. At that time, she was receiving chiropractic care for back and neck injuries she sustained five years earlier in a horse-riding accident. In 1994, her chiropractor requested that her health insurance carrier allow 24 chiropractic visits per year to treat the injuries sustained in the horse-riding accident. In 1997, Pu-susta visited the chiropractor once a month until the automobile accident in December. Following the accident, Pususta’s pain worsened and her chiropractor concluded that the auto accident had exacerbated her prior injuries. After the accident, Pususta received more frequent chiropractic care: seven times in December 1997, nine times in January, eight times in February, nine times in March, seven times in April, twice in May, once in June, twice in July, and twice in August.

Pususta had a no-fault automobile insurance policy with State Farm. Following the accident, State Farm reimbursed Pususta for the medical care she received for her injuries through February 1998, but State Farm refused to provide further coverage until Pususta submitted to an independent medical exam (IME). Pususta attended an IME on July 16, 1998. The independent medical examiner concluded that some of Pususta’s injuries were caused by the earlier horse-riding accident and that chiropractic care for injuries arising out of the auto accident was warranted only through the first week in April 1998. State Farm informed Pususta that on this basis it would provide coverage only for expenses incurred through the first week of April.

Pususta sought arbitration of the dispute and coverage for all chiropractic care through September 16, 1998, the date of the arbitration. State Farm argued it should not be required to pay for medical expenses incurred after the first week in April because the remaining medical expenses were due to the horse-riding injury and further treatment for any injuries related to the automobile accident was not reasonable or necessary. State Farm also argued that if it were required to pay for any medical care received after the first week in April, the expenses should be apportioned based on the degree to which the automobile accident caused the injuries. Specifically, State Farm asked that it not be required to pay for the 24 chiropractic visits per year that the chiropractor requested for the injuries that existed before the auto accident.

The arbitrator awarded Pususta all of her medical expenses through August 1998. In his written conclusions, the arbitrator stated that the facts of the case “would call for apportionment, based upon the prior accident,” but that our decision in Great West Casualty Co. v. Northland Ins. Co., 548 N.W.2d 279 (Minn.1996), precluded him from doing so. State Farm appealed. The district court upheld the award, and the court of appeals affirmed, concluding that under Great West, it was not clear that that the arbitrator erred by refusing to apportion medical expenses. See Pususta v. State Farm Ins. Cos., No. C8-99-1068, 1999 WL 1101388 (Minn.App.1999). We granted review to consider the no-fault arbitrator’s conclusion that he was precluded by our decision in Great West from considering whether a portion of the claimed medical expenses resulted from injuries caused by the horse-riding accident and whether reimbursement for such expenses should be denied.

No-fault arbitrators are limited to deciding questions of fact and their legal determinations are subject to de novo review by the courts. Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 882 (Minn.2000). The issue before us is a legal determination, which we review de novo. Nathe Bros., Inc. v. Am. Nat’l Fire Ins. Co., 615 N.W.2d 341, 344 (Minn.2000).

We begin our analysis of the issue by examining the provisions of the Minnesota No-Fault Automobile Insur-anee Act (No-Fault Act) relating to reimbursement of medical expenses. Our primary objective in interpreting statutory language is to give effect to the legislature’s intent as expressed in the language of the statute. Minn.Stat. § 645.16 (2000). The No-Fault Act provides that an injured person, such as Pususta, is entitled to medical expense reimbursement “for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * *.” Minn.Stat. § 65B.44, subd. 1 (2000) (emphasis added). The term “loss” is defined as economic detriment, which includes medical expenses “resulting from, the accident causing the injury.” Minn. Stat. § 65B.43, subd. 7 (2000) (emphasis added). The statutory language thus incorporates the element of causation into the determination of what losses are reimbursable.

The question that the trier of fact, in this case the arbitrator, must determine under the No-Fault Act is whether the medical expenses Pususta claims result from injuries arising out of, or caused by, the use or maintenance of a motor vehicle; that is, whether the medical expenses claimed are for injuries caused by the automobile accident. We have set forth three general considerations for determining whether an injury arose out of the use of a motor vehicle. See Cont’l W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn.1987). In the case of this car accident, we are concerned only with the first consideration, which is the extent of causation between the automobile and the injury. Id. The causal connection is established if “the injury is a natural and reasonable incident or consequence of the use of the vehicle.” N. River Ins. Co. v. Dairyland Ins. Co., 346 N.W.2d 109, 114 (Minn.1984) (quoting Tlougan v. Auto-Owners Ins. Co., 310 N.W.2d 116, 117 (Minn.1981)).

As applied to this case, the arbitrator appeared to question whether all of the medical expenses Pususta claimed resulted from injuries caused by the car accident, but he declined to answer the question, referring to such a determination as an “apportionment” of expenses caused by the horse-riding accident and expenses caused by the auto accident. The arbitrator determined that the facts of this case called for such an apportionment, but he interpreted our decision in Great West to prohibit the apportionment of damages where two separate accidents contributed to an injury. See 548 N.W.2d at 281.

In Great West, the insured injured his shoulder in 1988 in an accident that arose out of the use of a motor vehicle while he was working. Id. at 279. At the time he was insured by and received no-fault benefits from Northland Insurance Company. Id. In June 1991, the insured re-injured his shoulder, again arising out of use of a motor vehicle. Id. At that time, Great West was his insurance carrier and it promptly provided coverage for his economic losses related to the injury. Id. at 279-80. By May 1992, Great West had paid more than $15,000 in no-fault benefits for the shoulder injury. Id. at 280.

Great West brought a subrogation and contribution action against Northland under Minn.Stat. § 65B.47 (2000), which establishes the priority for coverages available when the loss results from use of a vehicle for employment. For example, the statute provides that if a person is insured in a vehicle provided by his employer, basic economic loss benefits are to be provided by the insurance carrier covering the vehicle, or, if none, the carrier covering the injured person. Minn.Stat. § 65B.47, subd. 1 (2000). The statute provides that where two or more obligations to pay benefits are applicable, the reparation obligor against whom a claim is asserted must pay the claim as if wholly responsible, but that obligor may bring an action for contribution against other obligors. Id., subd. 5. The statute also allows for an action in subrogation. Id., subd. 6.

Great West claimed that the injury for which it paid benefits was partially caused by the June 1988 accident when the claimant was insured by Northland and sought reimbursement under Minn.Stat. § 65B.47 from Northland for a portion of the benefits Great West paid its insured. Great West, 548 N.W.2d at 280. We were asked whether under section 65B.47, a no-fault carrier may by subrogation or contribution obtain reimbursement from another no-fault carrier for paid benefits that it contends were for injuries resulting from an earlier car accident, when the claimant was insured by the other carrier. We noted that subrogation in the no-fault context is purely a creature of statute and that the definition of “loss” under Minn.Stat. § 65B.43, subd. 7, implies that, for purposes of subrogation and contribution under section 65B.47, only one accident can be deemed the cause of an injury. Great West, 548 N.W.2d at 280-81. We concluded that the authorization for actions for sub-rogation and contribution in Minn.Stat. § 65B.47 does not apply to a multiple accident situation. Great West, 548 N.W.2d at 281.

Great West is distinguishable from the case at bar because Great West involved subrogation and contribution claims under section 65B.47, which establishes priorities between insurers for a single accident. See Scheibel v. Ill. Farmers Ins. Co., 615 N.W.2d 34, 37 (Minn.2000) (“[Ojur holding in Great West only addressed whether an insurer has a right of subrogation under the no-fault act.”). Here we deal with a more elementary and basic concern: whether the trier of fact, in this instance the arbitrator, may consider whether the medical expenses for which reimbursement is sought are for injuries caused by an earlier nonautomobile accident, in this instance a fall from a horse.

Pususta nonetheless relies on language in Great West indicating that attribution of medical expenses to prior accidents or injuries is improper in the no-fault context. In explaining the imposition of the entire expense on Great West, we stated:

Great West accepted [the claimant] as an insured with whatever physical condition he may have had at that time, and it is not for Great West to either refuse payment of benefits for that portion of his disability caused by a previous injury or is it to seek subrogation from Northland therefore.

548 N.W.2d at 281 (emphasis added). The implication of this ruling in Great West arose in Scheibel, where the claimant was injured in a March 1996 collision for which the insurer paid $3,558 in medical expenses. Less than two months later the claimant again injured his back in an auto accident requiring medical care. The insurer, the same for both accidents, attributed all medical expenses to coverage for the second accident, exhausting the $20,000 limit and leaving the claimant with approximately $6,500 in unpaid medical expenses. Scheibel, 615 N.W.2d at 36 n. 1.

In Scheibel we noted that our statement in Great West regarding attributing benefits to a previous injury was “not a part of our holding.” Scheibel, 615 N.W.2d at 38. We nonetheless relied on this language to require the insurer in Scheibel to pay the maximum policy limit for injuries “regardless of the extent to which each accident contributed to the injuries.” 615 N.W.2d at 39. Thus, the question presented is whether our decisions in Great West and Scheibel, to the extent they reject attributing medical expenses to previous accidents, apply where the previous accident is not an automobile accident.

We stated in Scheibel:

[The insurer] does not dispute that if Scheibel had been in two accidents and suffered distinct and separable injuries, medical expenses from each injury would have been separately compensa-ble up to the policy maximum of $20,000 for each accident. We see no reason why the same principles should not apply when the second accident exacerbates an injury sustained in an earlier accident. It would be an absurd result to cut off recovery for an injury from the first accident merely because an intervening accident aggravates the same injury.

615 N.W.2d at 38-39. Applying the same rationale used in Scheibel to these facts, there can be no dispute that if Pususta had injured her foot in the horse-riding accident and injured her shoulder in the auto accident, medical expenses for the foot injury would not be attributable to the no-fault auto carrier. To hold the insurer liable for medical expenses resulting from a nonautomobile accident conflicts with the statutory language limiting the definition of loss to injuries “arising out of the maintenance or use of a motor vehicle * * *.” Minn.Stat. § 65B.44, subd. I.

Both Scheibel and Great West must be read in the context in which they arose — a dispute over which no-fault policy the losses should be attributed to, where some of the losses arguably resulted from a prior auto accident. Great West stands for the proposition that where the legislature has not provided for contribution or subrogation between insurers in this context, we will not read such a right into the statute. 548 N.W.2d at 281. Scheibel stands for the proposition that an insurer cannot minimize its exposure by attributing all losses to one policy, and that within the no-fault context, the overriding principle is that an injured party be fully compensated to the limits of mandated insurance. 615 N.W.2d at 38-39.

Neither Great West nor Scheibel prohibits an arbitrator from determining whether the medical expenses for which the insured is seeking reimbursement from the no-fault carrier result from injuries that arise out of the car accident, that is, the use or maintenance of a motor vehicle. In contrast to Great West and Scheibel, here we apparently have some medical expenses arising within the no-fault system and some arising outside that system. Within the no-fault system, i.e., where there are multiple auto accidents involved, imposing liability solely on the insurer at the time of the most recent accident to the extent such coverage fully compensates the claimant serves the legislative goals of ensuring prompt payment of expenses and minimizing litigation. MinmStat. § 65B.42 (2000); Scheibel, 615 N.W.2d at 37. Where, as here, one cause of injury arises within the no-fault system and one outside that system, our focus is on whether the loss arose out of the use of an automobile and whether reimbursement is for only those medical expenses resulting from injuries caused by the use or maintenance of an automobile.

Pususta relies on the above-quoted language in Great West in arguing that State Farm must pay for all of her medical expenses because the insurer must take the insured with whatever condition she had at the time of the accident. See Great West, 548 N.W.2d at 281. However, there is no indication in the No-Fault Act that the legislature intended to modify the well-settled concept from tort law that damages are those attributable to a particular injury and the aggravation of a pre-existing physical condition. See Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 275 n. 2 (Minn.1995) (stating compensatory damages are the “natural, necessary and usual result of the * * * occurrence in question.”); Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992) (stating aggravation damages ensure that defendant pays only for the harm he causes, not the harm plaintiff already had); Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 280, 58 N.W.2d 561, 563 (1953). Requiring compensation for any aggravation of a pre-existing condition is what is meant by accepting the insured with any conditions she had at the time. Accepting the insured with the conditions she had does not mean that the insurer is liable for the expenses that the pre-existing condition, “running its normal course, would itself have caused if there had been no aggravation * * *.” Nelson, 239 Minn. at 280, 58 N.W.2d at 563. The insurer is liable for the expenses related to injuries caused or aggravated by the automobile accident. Limiting damages in this way insures that the insurer will pay only for the damages caused by the accident and not for the pre-existing physical condition. Leubner, 493 N.W.2d at 122. Applied to a no-fault case, the limitation ensures that a no-fault insurer pays only medical expenses for injuries arising out of the use of an automobile and not medical expenses for injuries caused by a nonautomobile accident.

Thus, we reverse and remand and instruct the arbitrator to award those reasonable medical expenses for treatment of injuries caused by, or aggravated by, the automobile accident. The arbitrator must determine the extent to which the medical expense relates to an injury that was a natural and reasonable incident or consequence of the use of the vehicle. North River, 346 N.W.2d at 114. Medical expenses for injuries caused solely by the horse-riding accident shall be denied.

Reversed and remanded.

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority opinion and would affirm the court of appeals. The majority opinion is based on equitable apportionment, which is an approach that we have specifically rejected for subrogation claims to determine medical expense benefits provided for in the Minnesota No-Fault Automobile Insurance Act (No-Fault Act). Great West Cas. Co. v. Northland Ins. Co., 548 N.W.2d 279 (Minn.1996). The no-fault system was designed to eliminate this type of dispute on minor claims once a compensable loss occurs, and we have so held in other contexts. In fact, recently we stated “we disagree with the court’s apportioning of PIP benefits, and we consider them payable by the insurer when the insured incurs a loss.” Id. at 281 n. 4. The majority decision now reverses this directive and ignores the facts supporting the arbitrator’s and trial court’s ultimate decisions, awarding benefits in this case.

Here, the district court confirmed the medical expenses awarded in arbitration. It found that notwithstanding some comments made by the arbitrator relating to legal issues that “[a]ny allusion by the arbitrator to case law regarding apportionment was secondary to the facts which he had already decided. While defendant asserts that [the arbitrator] exceeded his powers, it has failed to make a clear showing that that was, in fact, the case.” The trial court reasoned “[t]he arbitrator clearly decided that Plaintiff had been injured in the auto accident of December 6, 1997, and that she received chiropractic care related to that accident.” Two experts were called upon in the arbitration hearing to give their opinion on the reásonable and necessary medical treatment required because of this automobile accident. Valerie Hoffman, D.C., offered an opinion on behalf of Pususta that the rehabilitation services being performed were for neck and upper back, not her lower back that was being treated before the automobile accident. David Olson, D.C., on behalf of State Farm, rendered an opinion authorizing paying the bills for medical rehabilitation through the beginning of April 1998, but none after that because that is when Pususta reached preaccident status. Accordingly, there was conflicting medical testimony, one opinion requiring additional treatment and the other terminating the treatment.

The court of appeals affirmed the arbitrator’s decision considering the guidance provided the supreme court in Great West and could not say that the arbitrator and the district court erred in refusing to apportion the respondent’s medical expenses. Pususta v. State Farm Ins. Cos., No. C8-99-1068, 1999 WL 1101388 (Minn.App.1999). Now, without calling the relief on remand apportionment, the majority reverses both of the lower courts with an order that the arbitrator must determine the extent to which the medical expenses relate to the use of a motor vehicle and “medical expenses for injuries caused by the horse riding accident shall be denied.” This directive obviously, calls for apportionment between accidents, which the arbitrator also determined was appropriate, but he felt constrained by our precedent in Great West. However, adopting the principle of apportionment severely interferes with the statutory framework that is “to govern the effect of advance payments pri- or to final settlement of liability” once a compensable loss occurs. Minn.Stat. § 65B.42, subd. 5 (2000).

The facts in this case highlight the prob^ lems that would be created by the majority’s opinion. Pususta was 18 years old at the time of the automobile accident, which occurred on December 6, 1997. Before authorizing any medical payments for that accident, State Farm ordered an independent medical examination. State Farm then decided to pay medical bills incurred through February 1998, but then stopped any further payments. Five months went by with no further payments and no denial of benefits. In the meantime, medical expenses had been incurred by an 18-year-old woman totaling more than $4,000. An independent medical examination was completed July 16, 1998, and an opinion rendered on July 23, 1998, 7 months after the automobile accident. Then, retroactively, Dr. Olson decided no further medical bills should be paid beyond the beginning of April of 1998. Now, the majority opinion will compel an independent medical examination whenever there is a preexisting no-nauto-related accident case with resulting expense, uncertainty and delays now being thrust into every decision on payment. In most cases, this will lead to retroactive approval or denial of medical expenses incurred to treat in a timely fashion injuries arising from an automobile accident. This result will occur even though it is undisputed that early and proper rehabilitation treatment usually tends to mitigate everybody’s damages. This is not to say that medical reimbursement would continue forever because there are statutory dollar limits applied to every policy and an arbitrator still would have the ability to terminate payments for medical expenses when pre-accident condition status has been reached. The No-Fault Act provides for such a determination now and that is why apportionment principles should be rejected for the same reason we rejected those principles for subrogation claims.

In Great West, we reasoned that a sub-rogation right must be found, if at all in the No-Fault Act, in that we do not recognize a separate common law right of subro-gation in the no-fault context. 548 N.W.2d at 281. This interpretation was reacknow-ledged in Scheibel v. Ill. Farmers Ins. Co., 615 N.W.2d 34, 37 (Minn.2000), and the reasoning should be followed in this case.

In Great West, we disallowed a subrogation claim against Northland brought by Great West who insured an individual injured in an automobile accident 3 years after the first automobile accident. 548 N.W.2d at 281. The majority attempts to distinguish this case from Great West depending on whether some of the medical expenses arose within or outside the no-fault system. Great West involved a multiple auto accident and the aggravation of a preexisting condition that resulted in a dispute between different insurance companies involved at the time of the two accidents, one in June 1988 and the second in June 1991. 548 N.W.2d at 279-80. We held that “[t]he clear implication is that only one accident can be deemed to be the cause of an injury for purposes of subrogation under section 65B.47.” Id. at 281. This “one accident” precedent from Great West is even more compelling in this case.

As stated by the legislature, the purpose of the No-Fault Act is to relieve the severe economic distress of uncompensated victims of automobile accidents without regard to whose fault caused the accident and to encourage appropriate medical and rehabilitation treatment by assuring prompt payment for the treatment. Minn. Stat. § 65B.42. It is undisputed that the respondent has suffered a compensable loss in an automobile accident, is an injured person, and is entitled to reasonable medical expense benefits and the assurance of prompt payment. Minnesota Statutes § 65B.44, subdivision 2, provides for the reimbursement of “all reasonable expenses for necessary * * * medical * * * and rehabilitative services * * It is also undisputed that the respondent has a preexisting chronic medical injury due to a horse-riding accident.

The majority opinion deviates from the stated purpose of the Act and holds that the statutory language defining loss incorporates the elements of causation into the determination of what medical expense benefits are reimbursable. The majority opinion relies on two of our cases on causation between the use of an automobile and an injury. In Continental Western, we found that there was the requisite degree of causation between injuries and the use of a car when a gun was fired out of a moving vehicle causing injury to another party. Cont’l W. Ins. Co. v. King, 415 N.W.2d 876, 878 (Minn.1987). North River involved an injury from a trailer attached to a motor vehicle. N. River Ins. Co. v. Dairyland Ins. Co., 346 N.W.2d 109, 114 (Minn.1984). However, these cases are not helpful because they do not involve PIP benefits and, in this case, it is undisputed that the second injury arose out of the use of an automobile.

Although our decision in Great West involved a subrogation claim between insurers for an injury caused by more than one auto accident, the legal principles, which support the denial of a subrogation claim, apply equally as well to the facts in this case.

The majority’s decision in this case has the same

* * ⅜ potential to trigger precisely what the legislature appears to have attempted to avoid in adopting the term “the accidenfi’-finger pointing among insurers claiming that another carrier was responsible for some portion of the insured’s disability. Further, as we noted above, it introduces the fault-based concept of subrogation into allocation of loss independent of fault, a step we are unwilling to take without explicit statutory authority notably absent here. That the entire responsibility for Neulieb’s disability caused by the accident occurring while Great West was on the policy should fall on Great West is neither unfair nor unjust. Great West accepted Neulieb as an insured with whatever physical condition he may have had at the time, and it is not for Great West to either refuse payments of benefits for that portion of his disability caused by a previous injury or is it to seek subro-gation from Northland therefore.

Great West, 548 N.W.2d at 281 (emphasis added).

The majority opinion also charts new legal ground in determining no-fault medical expense benefits by using common law tort principles to modify the No-Fault Act. It supports its rationale by citing Phelps v. Commonwealth Land. Title Ins. Co., 537 N.W.2d 271 (Minn.1995), which decided what general and special damages were in the context of an age and disability claim, Leubner v. Sterner, 493 N.W.2d 119 (Minn.1992), which was a medical malpractice claim, and Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 58 N.W.2d 561 (1953). The majority then summarily distinguishes medical expenses from those caused by previous nonauto accidents from those caused by the more recent auto accident even though it is undisputed that the auto accident aggravated a chronic preexisting condition and the insured suffered a com-pensable loss. To shore up its reasoning, the majority opinion then gives an example of two separate injuries, one to one’s foot caused by a horse-riding accident and another to one’s shoulder caused by an auto accident. However, that example is not helpful because it obviously does not involve an aggravation of a preexisting injury, nor does it support a distinction between auto and nonauto-related accidents when the later injury was a compensable loss under the No-Fault Act.

In this case, the record indicates that we do not have two different injuries but rather the aggravation of a preexisting injury-resulting from an auto accident. As in Great West, the entire responsibility for the insured’s disability caused by the accident occurred while State Farm was on the policy. State Farm accepted Pususta as an insured with whatever physical condition she may have had at the time and it is not for State Farm now to either refuse payments of benefits for that portion of disability caused by the previous injury or to seek subrogation. See Great West, 548 N.W.2d at 281. Importantly, once a com-pensable loss occurs, the No-Fault Act does not contain equitable apportionment of medical expense benefits nor have we previously recognized a common-law right to seek apportionment of medical expenses based on a preexisting condition in the no-fault context.

If we disallow subrogation of medical expense benefits between two insurance companies based on the one-accident principle, (that is, the last accident for purposes of the No-Fault Act), that is all the more reason to apply that same legal principle to prohibit insurers from attempting to offset, allocate or seek apportionment of medical expense benefits from their insureds. The No-Fault Act was not designed to pit an insurer against its insured for these basic medical benefits but rather to encourage swift, inexpensive rights to claim the benefits, without regard to fault or apportionment. Minn.Stat. § 658.42. The majority opinion will require more expert testimony of all the parties whenever a preexisting condition exists. This will only lead to more expenses, delays and disputes over these basic benefits. The No-Fault Act was designed to remove these subjective disputes to insure PIP coverage in exchange for removing the injured’s right or necessity to have to sue fer those types of benefits prior to no-fault coverage. See Minn.Stat. § 65B.51, subds. 1, 3 (2000).

In that the legislature did not provide for apportionment, it is not for this court to make up an additional distinction for entitlement to PIP benefits, based on injuries “within the no-fault system and some medical expenses arising outside that system.” The No-Fault Act has already provided a standard to determine medical expense benefits: “ * * * all reasonable expenses for necessary * * * medical, * * * and rehabilitative services * * *.” Minn.Stat. § 65B.44, subd. 2. We should continue to abide by this standard and our “one accident” precedent rather than create judicial modifications of the No-Fault Act. The legislature is the policy-making branch better suited to make these fine distinctions. I would therefore affirm.

      . Minn.Stat. §§ 65B.41-.71 (2000).

      . The other two factors are whether an act of independent significance broke the causal link between the vehicle use and the injuries, and what type of use of the auto was involved. Klug, 415 N.W.2d at 878.

      . The dissent acknowledges that there was conflicting medical testimony regarding the nature of Pususta's injuries. Our practice in no-fault arbitration cases is to defer to the factfinder's resolution of such conflicts. See Johnson v. Am. Family Mut. Ins. Co., 426 N.W.2d 419, 422 (Minn.1988). Here the arbitrator found, "The particular facts of this current arbitration would call for apportionment, based upon the prior accident, the prior and very recent chiropractic care * * While we do not agree with the arbitrator’s use of the term 'apportionment,' (see infra note 4) the implicit factual determination that some of Pususta’s medical expenses were attributable to the earlier horse-riding accident is a factual determination within the arbitrator's factfinding powers. Johnson, 426 N.W.2d at 422.

      . We further stated that through this ruling "we cast a long shadow over the court of appeals' decision in Rodgers v. Progressive Specialty Ins. Co., 499 N.W.2d 61 (Minn.App.1993) [, rev. denied (Minn. Jun. 22, 1993) ].” In Rodgers, the claimant was still receiving medical care from an April 1990 auto accident when she was injured in a second, February 1991 accident. Her treating physician attributed 50 percent of Rodgers’ injuries to the 1990 accident. The arbitrator awarded Rodgers the full amount of her medical expenses, but the district court reduced the award by half, stating that, “the insurer should pay only for those expenses that relate to the accident at hand.” 499 N.W.2d at 62. The court of appeals-affirmed, relying on use of the singular "the accident” causing injury in the definition of "loss” to exclude losses resulting from prior accidents. Id. at 63.

      . Thus, the dissent is correct that we have rejected subrogation claims under the No-Fault Act in the past. The dissent claims that the decision in this case is based on "equitable apportionment, which is an approach that we have specifically rejected for subro-gation claims * * As noted herein, however, neither Great West nor Scheibel addressed the situation presented here, where the previous accident is not an automobile accident. The dissent’s charge that we apply equitable apportionment also is not accurate, as "apportionment” in the automobile insurance context refers to a situation where several automobile insurance policies arguably cover the loss. See generally 16 Couch on Insurance 2d § 62:32 (1983). Here, there is just one automobile insurance policy that covers the loss, and the question presented is a threshold question of whether the claimed medical expenses are losses "resulting from the accident causing the injury,” as the legislature required before imposing liability on the insurer. Minn.Stat. § 65B.43, subd. 7. Contrary to the conclusion reached by the dissent, we do not tread on the legislative domain by curtailing recovery of injured persons; rather, we give effect to the clear statutory language that medical expense reimbursement be "for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * *." Minn.Stat. § 65B.44, subd. 1.

      . In Scheibel we chose not to apply the undisputed attribution of 35 percent of Scheibel's medical expenses to the first accident/policy and 65 percent of Scheibel’s medical expenses to the second accident/policy. However, we did limit Scheibel’s recovery under the first policy to only that unreimbursed portion of his total medical expenses attributable to the first accident, acknowledging that to do so relied to some extent on apportionment. 615 N.W.2d at 39 & n. 3. Likewise, attribution of expenses is appropriate here to give effect to the statutory language that losses arise out of the use of an automobile. Minn.Stat. § 65B.44, subd. 1. While we have acknowledged that attributing expenses to a particular injury is appropriate in these contexts, the factual posture of this case does not require us to reach the question whether the “long shadow” over Rodgers remains. See Great West, 548 N.W.2d at 281 n. 4.

      . The dissent relies on subdivision 2 of Minn. Stat. § 65B.44, which describes medical expense benefits available under the no-fault system as “all reasonable expenses for necessary” services. The dissent ignores the context in which subdivision 2 arises, specifically that "medical expense loss” is described in subdivision 1 as a type of loss "suffered through injury arising out of the maintenance or use of a motor vehicle * * *." Minn.Stat. § 65B.44, subd. 1 (emphasis added). The dissent's construction of the statute provides a limitless standard that would allow recovery under the no-fault system for injuries wholly unrelated to use of a motor vehicle, contrary to the intent of the legislature.
      The dissent also complains that the example of a foot injury and a shoulder injury is not helpful because it does not involve aggravation of a pre-existing injury. However, as we explain, aggravation of a pre-existing injury through an auto accident is unquestionably compensable through the no-fault system.

      . The dissent states that this case involves not "two different injuries but rather the aggravation of a pre-existing injury resulting from an auto accident,” based on the IME report of David C. Olson, D.C. Whether Pususta’s medical expenses are the result of the pre-existing injury or an aggravation of that injury is a fact question for the arbitrator to address on remand and not for an appellate court to determine in the first instance. To the extent the dissent assesses Olson's credibility, we note that Olson concludes that Pususta reached a pre-injury level of health in March 1998, indicating that any aggravation had ceased at that point.

      . The dissent claims that the result of our holding will be "more expenses, delays and disputes” over no-fault benefits. We recognize that the goals of the no-fault system include speeding the administration of justice and expediting resolution of disputes through arbitration. Minn.Stat. § 65B.42. Requiring no-fault insurers to unquestioningly pay for all medical care for pre-existing injuries after an auto accident also would minimize expense, delay and dispute, but would not give effect to the express intent of the legislature that no-fault losses arise from the maintenance or use of an automobile. See Minn. Stat. § 645.16 ("When words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”).

      . In his independent chiropractic evaluation of July 16, 1998, Dr. Olson described the most recent accident as "exacerbating chronic pre-existent symptoms * * * [and an] aggravation to pre-existent conditions.” Appellant's Appendix at 25-26.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    James J. ENGVALL, Plaintiff, v. SOO LINE RAILROAD COMPANY, d/b/a Canadian Pacific Railway Company, Defendant and Third-Party Plaintiff, Petitioner, Appellant, General Motors Corporation, a foreign corporation, Third-Party Defendant, Respondent.
    No. C6-99-64.
    Supreme Court of Minnesota.
    Aug. 2, 2001.

      Eric J. Magnuson, Jeffrey R. Schmidt, and Peter D. Gray, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, for appellant.
    Mickey W. Greene, Hanson, Marek, Bolkcom & Greene, Ltd., Minneapolis, and David M. Heilbron, McCutchen, Doyle, Brown & Enersen, L.L.P., San Francisco, CA, and Thomas J. Sweeney, Eckert, Sea-mens, Cherin & Mellott, LLC, Pittsburgh, PA, for respondent General Motors Corporation.
    Glenn Olander-Quamme, Spence, Ricke, Sweeney & Gernes, P.A., St. Paul, and Louis P. Warchot, Washington, D.C., for amicus curiae Association of American Railroads.
    David B. Potter, Matthew J. Norton, Oppenheimer, Wolff & Donnelly, L.L.P., Minneapolis, and Hugh F. Young, Jr., Re-sten, VA, for amicus curiae Product Liability Advisory Council, Inc.
   OPINION

PAGE, Justice.

We are asked to decide whether a railroad can maintain a cause of action for contribution and/or indemnity against a railroad locomotive manufacturer when the railroad is sued by an employee under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1994). The district court granted summary judgment to the manufacturer, holding that federal law preempted the contribution and indemnity actions and that the manufacturer was not a proper FELA defendant. The court of appeals affirmed. We reverse.

This case arises from an alleged injury suffered by James Engvall, a locomotive engineer for appellant Soo Line Railroad Company (Soo Line), in the course of his employment on November 6, 1996, while operating an SD60 series locomotive manufactured by the Electro-Motive Division of respondent General Motors Corporation (GM). Engvall sued Soo Line under the FELA and the Locomotive Inspection Act ((LIA), formerly known as the Boiler Inspection Act (BIA)), 49 U.S.C. §§ 20701-20703 (1994), specifically alleging that while he was applying the SD60’s handbrake the handbrake’s handwheel mechanism slipped, causing him to injure his back. Soo Line, in turn, filed a third-party complaint against GM, alleging, among other things, that Engvall’s injury was the result of a design flaw in the SD60’s handbrake doubler assembly. In the third-party complaint, Soo Line asserted that GM was liable for Engvall’s injuries under various state common law claims and that Soo Line was entitled under Minnesota law to contribution and/or indemnity from GM if Engvall recovered from Soo Line. GM raised the affirmative defense that Soo Line’s claims are preempted by federal law and moved for summary judgment. Soo Line filed a cross-motion for partial summary judgment, asserting that it was entitled to contribution and/or indemnity from GM for any liability it owed on Engvall’s FELA claims. During the summary judgment proceedings, Soo Line moved the court for leave to amend its third-party complaint to include claims for contribution and/or indemnity based on the SD60’s handbrake doubler assembly’s alleged noncompliance with the LIA and the Safety Appliance Act, 49 U.S.C. §§ 20301-20306 (1994) (SAA), which, like the LIA, is a railroad safety statute. Following those proceedings, Soo Line settled with Eng-vall, leaving only its contribution and indemnity claims against GM.

The district court found that the LIA preempted Soo Line’s state common law claims and granted GM’s summary judgment motion. The court also found that “Soo Line has no claims against General Motors under either the LBIA [sic] or the SAA because General Motors is not a proper FELA defendant and there exists no private right of action under either statute.” Finally, based on these findings, the district court further found that Soo Line’s motions for partial summary judgment and amendment of its third-party complaint were moot. On appeal, the court of appeals affirmed the district court, holding “that the LIA preempts state common-law claims for contribution or indemnity based on design and construction asserted by a railroad carrier against a locomotive manufacturer.” Eng-vall v. Soo Line R.R., 617 N.W.2d 444, 448 (Minn.App.2000) (Engvall II).

This court reviews an order granting summary judgment to determine whether there are any genuine issues of material fact and whether the lower court erred in applying the law. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 383 (Minn.1999). In doing so, the court “views the evidence in the light most favorable to the party against whom summary judgment was granted.” Ciardelli v. Rindal, 582 N.W.2d 910, 912 (Minn.1998).

We address as a threshold matter whether Soo Line can maintain a state law cause of action based on a violation of the LIA when the alleged equipment problem does not violate Federal Railroad Administration (FRA) regulations. Holding that Soo Line survives summary judgment on that basis, we turn to whether the fact that Engvall could not have brought a direct action against GM under the FELA precludes the existence of common liability, a prerequisite to a claim for contribution. To answer the question whether GM and Soo Line have common liability, we must determine whether a state law claim against GM based on the LIA is preempted by federal law. Finally, we address whether Soo Line may pursue its claim for indemnity even though the FELA imposes a nondelegable duty on employers.

I.

The background for this lawsuit is the FELA, a general negligence statute, Waymire v. Norfolk and W. Ry., 218 F.3d 773, 775 (7th Cir.2000), that allows railroad employees to recover from their employers for employment-related injuries caused by employer negligence, Engvall I, 605 N.W.2d at 739 n. 1; 45 U.S.C. § 51. Under the FELA, the employer’s duty is nondelegable. Shenker v. Balt. & Ohio R.R., 374 U.S. 1, 7, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963). At the same time, the LIA “ ‘imposes upon the [railroad] carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate ... without unnecessary peril to life or limb.’ ” Lilly v. Grand Trunk W. R.R., 317 U.S. 481, 485, 63 S.Ct. 347, 87 L.Ed. 411 (1943) (quoting S. Ry. v. Lunsford, 297 U.S. 398, 401, 56 S.Ct. 504, 80 L.Ed. 740 (1936)); see Engvall I, 605 N.W.2d at 739 n. 1 (noting that the LIA “imposes an absolute requirement that employers provide safe equipment”); see also 49 U.S.C. § 20701(1) (1994). The LIA differs from the FELA in that the LIA does not confer any right of action on injured employees. Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Engvall I, 605 N.W.2d at 739 n. 1. The United States Supreme Court has construed the LIA to be an amendment to the FELA, so that “proof of [an LIA violation] is effective to show negligence as a matter of law” under the FELA. Urie, 337 U.S. at 189, 69 S.Ct. 1018; Engvall I, 605 N.W.2d at 739 n. 1. The “prime purpose” of both the FELA and the LIA is “the protection of railroad employees * * * from injury due to industrial accident,” Urie, 337 U.S. at 191, 69 S.Ct. 1018 (citation omitted), and the LIA is “to be read and applied with the [FELA],” Balt. & Ohio Ry. v. Groeger, 266 U.S. 521, 528, 45 S.Ct. 169, 69 L.Ed. 419 (1925). As noted, the FRA may promulgate regulations implementing the requirements of the LIA. 49 U.S.C. § 20103; 49 C.F.R. § 1.49(c)(5), (g).

The parties agree on two significant matters. First, that the SD60 handbrake is a “part” or “appurtenance” of a locomotive within the meaning of the LIA. And second, even though the LIA refers only to “railroad carrier[s],” the parties agree that manufacturers of railroad equipment are also subject to the requirements of the LIA. See 49 U.S.C. § 21302 (1994); 49 C.F.R. 229.7(b) (2000).

Does Soo Line have a state law cause of action based on a violation of the LIA when the claimed equipment problem does not violate FRA regulations? GM argues that an action based on the LIA must allege a violation of an FRA regulation, because a locomotive part or appurtenance complies with the LIA as a matter of law unless the part or appurtenance violates a specific FRA regulation. On this basis GM argues, relying principally on the Supreme Court’s decision in Groe-ger, that “courts and juries have no authority to judge locomotive designs deficient that do not violate a specific FRA regulation, for regulation remains FRA’s exclusive province.” GM’s reliance on Groeger is unwarranted.

In Groeger, a locomotive engineer was killed when the steam boiler of the locomotive he was operating exploded. The engineer’s wife brought an action against her husband’s employer under the FELA and the LIA. Groeger, 266 U.S. at 522-23, 45 S.Ct. 169. The trial court entered judgment for the wife following a jury verdict in her favor, and the circuit court of appeals affirmed. The Supreme Court reversed, concluding that part of the jury instructions was improper.

The trial court’s error involved the part of the jury instructions that allowed the jury to determine whether “the standard of duty imposed by the law required a fusible safety plug to be installed.” Id. at 528, 531, 45 S.Ct. 169. The problem with such an instruction, the Court explained, is that the LIA only requires equipment to meet a certain level of safety, and does not require that this level of safety be achieved in any particular manner. Id. at 529, 45 5.Ct. 169 (“carriers were left free to determine how their boilers should be kept in proper condition for use without unnecessary danger”); id. at 530, 45 S.Ct. 169 (“[ijnventions are occurring frequently, and there are many devices to accomplish the same purpose”). Thus, the Court held “that defendant was not liable for failure to furnish the best mechanical contrivances and inventions or to discard appliances upon discovery of later improvements, provided the boiler was in proper condition and safe to operate, as required by the statute.” Id. at 529, 45 S.Ct. 169 (emphasis added). Significantly, however, the Supreme Court approved of a jury instruction that incorporated the standard found in the LIA:

The court, in harmony with the provisions of [the LIA ], instructed the jury that the standard of defendant’s duty was to put and keep the locomotive in proper condition and safe to operate, and that it would be a violation of defendant’s duty if the engine * * * was permitted to be in such a condition that it could not be employed * * * without unnecessary peril to life or limb.

Groeger, 266 U.S. at 527-28, 45 S.Ct. 169 (emphasis added). Even more relevant is the Court’s observation: “There is nothing in the act or in any rule, regulation or order authorized by it, which specifies the use of fusible plugs. This, however, - does not relieve the defendant of the duty to have and keep its boilers safe for use as required by the act.” Id. at 529, 45 S.Ct. 169.

Groeger simply does not establish that a violation of a specific FRA regulation is necessary for a court or jury to decide that a locomotive part or appurtenance does not comply with the LIA. To the contrary, it establishes that a violation of the LIA can occur without a violation of a specific FRA regulation. Groeger, 266 U.S. at 529, 45 S.Ct. 169; see also Great N. Ry. v. Donaldson, 246 U.S. 121, 128, 38 S.Ct. 230, 62 L.Ed. 616 (1918) (rejecting railroad’s claim that, because a particular type of bolt used in a boiler had not been disapproved by a federal boiler inspector, the adequacy of the bolt under the LIA was conclusively established). As the Court stated in Urie, the LIA “simply outline[s] a general standard which may be more specifically articulated in rules” promulgated by the FRA. 337 U.S. at 190-91, 69 S.Ct. 1018 (emphasis added).

Groeger further establishes that, although a fact finder may not decide whether a locomotive part or appurtenance must be equipped with a particular device in order to comply with the requirements of the LIA, a fact finder may determine the broader question of whether the part or appurtenance was “in proper condition and safe to operate” without unnecessary danger of personal injury. Groeger, 266 U.S. at 527, 45 S.Ct. 169; see also 49 U.S.C. § 20701. And in doing so, the fact finder may consider the “presence or absence” of a particular device, such as a fusible plug or, in this case, a metal deflector plate. Groeger, 266 U.S. at 531, 45 S.Ct. 169. Contrary to GM’s contention, this will not result in inconsistent railroad operating standards among states. The applicable standard, as always, is the standard imposed by the LIA.

GM also relies on this court’s decision in Mahutga v. Minneapolis, St. Paul & Sault Ste. Marie Ry., 182 Minn. 362, 234 N.W. 474 (1931). In Mahutga, a brakeman claimed that he suffered a work injury as a result of the design of the side cab curtains on the locomotive on which he worked. Id. at 363, 234 N.W. at 474-75. The design of the side cab curtains had been approved by the ICC. Id. at 366, 234 N.W. at 476. In bringing his lawsuit under the FELA, the brakeman alleged that the side cab curtains violated the LIA. Id. at 363, 234 N.W. at 474.

Because the ICC had approved the design of the side cab curtains, we concluded that their use made the locomotive safe to operate without unnecessary peril to life or limb, and that “[a] jury cannot be permitted to substitute its judgment” for that of the ICC. Id. at 366, 234 N.W. at’476. Hence, Mahutga merely establishes that, when the FRA has found a particular design of a part or appurtenance to be safe to operate as required by the LIA, a jury cannot find otherwise. Therefore, Mahut-ga provides no support for GM’s position unless the FRA has in fact found the particular design of the handbrake at issue to be safe to operate under the LIA.

GM, citing 49 C.F.R. §§ 231.1-231.14 and 231.24-28 (2000), argues that the FRA has promulgated “detailed regulations governing handbrakes,” and that there is no indication that its SD60 handbrake violates these regulations. Soo Line replies that these regulations apply to the design and manufacture of railcar handbrakes, and not locomotive handbrakes. Whether they apply or not, GM cites no regulation that specifically approves of, or even addresses, the design of the particular handbrake used on the SD60. Although the SD60 handbrake very well may comply with the regulations as far as they go, the absence of any regulation addressing the handbrake’s doubler assembly presents the same situation present in Groeger, where the regulations addressed boiler construction and maintenance but did not specifically require the use of fusiblé plugs. Groeger, 266 U.S. at 525-26, 45 S.Ct. 169 (noting ICC Rule 25 relating to “staybolts” on boilers, and ICC Rule 14 relating to the cleaning of fusible 1 plugs on boilers equipped with such plugs).

Accordingly, neither Groeger nor Ma-hutga supports GM’s position. Rather, they support Soo Line’s position that the LIA may be violated in the absence of an on-point FRA regulation. Therefore, we conclude that a court or jury may properly determine whether the SD60 handbrake was “in proper condition and safe to oper-

ate without unnecessary danger of personal injury” as required by the LIA, and a claim brought on that basis is not necessarily precluded simply because it does not allege a violation of FRA regulations.

II.

We next address Soo Line’s claim for contribution from GM for any liability Soo Line may have under the FELA. It appears well-settled that a railroad may seek contribution or indemnity from a third party for liability incurred under the FELA when state law permits it. See, e.g., Ellison v. Shell Oil Co., 882 F.2d 349, 353-54 (9th Cir.1989); Shields v. Consol. Rail Corp., 810 F.2d 397, 399 (3d Cir.1987); Ala. Great S. R.R. v. Chi. & Northwestern Ry., 493 F.2d 979, 983 (8th Cir.1974); Fort Worth & Denver Ry. v. Threadgill, 228 F.2d 307, 312 (5th Cir.1955); Stephens v. S. Pac. Transp. Co., 991 F.Supp. 618, 620 (S.D.Tex.1998).

However, “Minnesota’s time-honored common law of contribution [does not] justify * * * contribution from parties who are not liable to the injured party. The very essence of the action of contribution is common liability.” Horton by Horton v. Orbeth, Inc., 342 N.W.2d 112, 114 (Minn.1984) (internal quotation marks omitted). “‘[I]t is joint liability, rather than joint or concurring negligence, which determines the right of contribution.’ ” Id. (alteration in original) (quoting Spitzack v. Schumacher, 308 Minn. 143, 148 n. 2, 241 N.W.2d 641, 645 n. 2 (1976)).

Soo Line argues that common liability exists because Engvall could have brought a state common law action of negligence per se based on a violation of the LIA against GM. In response, GM first argues that Engvall could not have brought a direct action against it because Urie establishes that there is no private right of action under the LIA and, although a railroad employee may use an LIA violation to establish negligence per se in a FELA action, manufacturers are not liable under the FELA. Although Soo Line concedes that manufacturers are not proper FELA defendants, it contends that GM misinterprets Urie. We agree. In Urie, the Supreme Court stated that the LIA and the SAA were amendments to the FELA. 337 U.S. at 189, 69 S.Ct. 1018. In doing so, the Court noted that “by its own terms the [LIA], like the [SAA], does not purport to confer any right of action upon injured employees.” Urie, 337 U.S. at 188, 69 S.Ct. 1018 (footnote omitted). However, this merely means that the LIA and the SAA do not provide statutory causes of action, and that a party suing for violation of either act must do so under a common law action. See Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969) (noting that the SAA “did not create a federal cause of action for either employees or nonemployees seeking damages for injuries resulting from a railroad’s violation of the Act” and that, although Congress subsequently provided employees with such a cause of action by enacting the FELA, “the nonemployee must look for his remedy to a common law action in tort”); Fairport, Painesville & E. R.R. v. Meredith, 292 U.S. 589, 596-97, 54 S.Ct. 826, 78 L.Ed. 1446 (1934) (automobile driver injured in collision with train at railroad crossing may recover in state common law action against railroad based on SAA violation); Steffey v. Soo Line R.R., 498 N.W.2d 304, 307 (Minn.App.) (intoxicated trespasser may assert state common law claim against railroad based on LIA violation), rev. denied (Minn. May 28, 1998).

Although the claims in Crane, Meredith and Steffey were asserted against railroads rather than manufacturers, GM concedes that manufacturers are subject to the LIA. Nor is it significant that the claims in those cases were asserted by nonemployees, while Engvall was an employee. In Meredith, the Supreme Court stated:

The federal Safety Appliance Act, as we already have said and this court repeatedly has ruled, imposes absolute duties upon interstate railway carriers and thereby creates correlative rights in favor of such injured persons as come within its purview; but the right to enforce the liability which arises from the breach of duty is derived from the principles of the common law.

292 U.S. at 598, 54 S.Ct. 826 (emphasis added). Moreover, the Supreme Court has stated that the LIA, “like the Safety Appliance Act, is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the use of safe equipment.” Lilly v. Grand Trunk W. R.R., 317 U.S. 481, 486, 63 S.Ct. 347, 87 L.Ed. 411 (1943) (emphasis added). Because the “prime purpose” of both the LIA and the SAA includes “the protection of employees,” Lilly, 317 U.S. at 486, 63 S.Ct. 347 railroad employees such as Engvall clearly fall within the “purview” of those statutes and may “enforce the liability which arises from the breach of duty” under those statutes when permitted by the common law, Meredith, 292 U.S. at 598, 54 S.Ct. 826. We therefore find no merit in GM’s argument that a violation of the LIA on- these facts cannot be used as the basis for a private negligence action brought under the common law. When an employee could have brought a state common law action alleging negligence per se against a manufacturer based on violation of the LIA, common liability between the employer and manufacturer exists sufficient to state a cause of action for contribution.'

GM next argues that allowing an employee to bring a negligence per se action based on violation of the LIA intrudes on a field Congress has reserved for federal law. There are three' situations in which state law is preempted under the Supremacy Clause, U.S. Const., art. VI. cl. 2:(1) explicit preemption; (2) “field” preemption, under which state law is preempted “where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively”; and (3) where there is an actual conflict between state and federal law. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). GM has argued only that the second form of preemption, field preemption, applies, and the parties agree that the field preempted by the LIA includes all state law respecting the design, construction, or material of locomotives. The question, therefore, is whether that field includes a state law cause of action premised on a violation of the preempting statute.

Soo Line does allege a design defect, thereby implicating the field preempted by the LIA. Soo Line argues, however, that although contribution and indemnity are state law remedies, its claims of liability based on the federal standard found in the LIA do not interfere with the federal regulatory scheme and therefore are not preempted.

In English, the Court held that the field preempted by federal law did not include a state law cause of action for intentional infliction of emotional distress based on actions by the plaintiffs employer allegedly taken in retaliation for her nuclear safety complaints. 496 U.S. at 76-77, 86, 110 S.Ct. 2270. In doing so, the Court noted that the question of whether a state law falls within a preempted field is determined not only “by reference to the purpose of the state law in question,” but also by reference to its “actual effect,” and that “for a state law to fall within the preempted zone, it must have some direct and substantial [rather than remote] effect” on the regulated field. Id. at 84, 85, 110 S.Ct. 2270. Soo Line contends that, because a negligence per se claim based on a violation of the LIA would not have any direct and substantial effect on the regulated field of locomotive design, construction, and material, such a claim does not fall within the preempted field.

GM claims that the preempted field includes all state law actions. The weakness in this position is that it equates the preemption of state law pertaining to locomotive design, construction, and material, with the preemption of all state law actions. Ordinarily, a plaintiff who brings a state law action will necessarily also rely on a state law standard of care because the action and the substantive law are intertwined. For instance, a plaintiff bringing a state law negligence action will generally rely on the state’s substantive law on negligence. Soo Line’s state law contribution and indemnity claims, by contrast, do not rely on any substantive state law standard, but instead rely on the standard imposed by the LIA, and GM cites no case in which a court held such claims to be preempted. Instead, GM cites a number of cases that purport to hold that the LIA preempts common law actions against manufacturers. See Oglesby v. Del. & Hudson Ry., 180 F.3d 458 (2d Cir.) (action by injured railroad employee against railroad, under the FELA, and locomotive manufacturer), cert. denied, 528 U.S. 1004, 120 S.Ct. 498, 145 L.Ed.2d 384 (1999); Springston v. Consol. Rail Corp., 130 F.3d 241 (6th Cir.1997) (action by automobile driver injured in collision with a train against the railroad owner of the train and track, and the train manufacturer); Law v. Gen. Motors Corp., 114 F.3d 908 (9th Cir.1997) (action by railroad employees against locomotive brake and engine manufacturers).

However, all of these cases involve claims that a manufacturer was liable based on its failure to meet a standard imposed by state law rather than federal law. See Oglesby, 180 F.3d at 460; Springston, 130 F.3d at 244; Law, 114 F.3d at 909. Therefore, these cases provide no support for holding that a state law action against a manufacturer, whose alleged liability is premised on a failure to comply with the LIA, is preempted. In such an action, no state standard is imposed on the manufacturer. Because no state standard is imposed, there is no danger of undermining the goal of nationwide uniformity of railroad operating standards, the primary rationale for holding state law claims preempted. See Oglesby, 180 F.3d at 461; Law, 114 F.3d at 910-11. Accordingly, although cases such as Oglesby, Springston, and Law are said to hold that all state law claims against a railroad manufacturer are preempted, it is more accurate to say that they hold that claims seeking to impose a state law standard of care on a manufacturer (or a railroad) are preempted. We conclude that the field preempted by the LIA does not include state common law actions based on a violation of the LIA. Thus, because Engvall could have brought a state common law action of negligence per se against GM based on a violation of the LIA, we hold that GM is not entitled to summary judgment on Soo Line’s contribution claim.

III.

Finally, we address whether the district court properly granted summary judgment on Soo Line’s indemnity claim. Unlike contribution, where responsibility for damages is reallocated based on relative fault, indemnity “shifts the entire loss from one culpable wrongdoer to another.” Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 367 & n. 9 (Minn.1977). In Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 104 N.W.2d 843 (1960), this court clarified the situations in which one joint tortfeasor may obtain indemnity from another joint tortfeasor. These include:

(1) Where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.
(2) Where the one seeking indemnity has incurred liability by action at the direction, in the interest of, and in reliance upon the one sought to be charged.
(3) Where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged.
(4) Where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged.
(5) Where there is an express contract between the parties containing an explicit undertaking to reimburse for liability of the character involved.

Id. at 372, 104 N.W.2d at 848 (footnotes omitted). We subsequently foreclosed indemnity in the fourth category, that is, where the one seeking indemnity is liable merely because of failure to discover or prevent the misconduct of the one sought to be charged, and to that extent overruled all cases to the contrary, including Hendrickson. Tolbert, 255 N.W.2d at 366-68 & n. 11; see also Ploog v. Ogilvie, 309 N.W.2d 49, 53 (Minn.1981) (“A cotortfeasor who is causally negligent may not recover indemnity from another cotortfeasor.”). Instead, the court in Tolbert “limit[ed] the reallocation of loss between joint tortfea-sors [in the fourth category] to contribution based upon relative fault.” Tolbert, 255 N.W.2d at 367.

In this case, the fourth category would have applied had Tolbert not eliminated it as a basis for indemnity. Of the remaining categories, the second and fifth are clearly inapplicable. Nor does the third appear applicable and, in any event, Soo Line has not alleged that its liability to Engvall arose because GM breached a duty it owed to Soo Line. This leaves the first category, where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.

GM argues that Soo Line cannot rely on this first category because Soo Line’s liability to Engvall was based, at least in part and perhaps in whole, on Soo Line’s own breach of its absolute and non-delegable duty to Engvall. The LIA imposed on Soo Line an “absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate in active service without unnecessary peril to life or limb.” S. Ry. v. Lunsford, 297 U.S. 398, 401, 56 S.Ct. 504, 80 L.Ed. 740 (1936). Neither actual nor constructive notice to Soo Line was necessary to establish liability. Groeger, 266 U.S. at 527, 45 S.Ct. 169. If the handbrake did not comply with the LIA, that alone would be sufficient for Engvall to establish that Soo Line violated its duty to him under the FELA and the LIA. “[P]roof of [a violation of the LIA] is effective to show negligence as a matter of law” under the FELA. Urie, 337 U.S. at 189, 69 S.Ct. 1018; Engvall I, 605 N.W.2d at 739 n. 1. Nor has Soo Line attempted, either in its briefs or at oral argument, to show that its liability to Engvall was only derivative or vicarious.

Nonetheless, it is conceivable that a jury, in weighing the respective fault of GM and Soo Line, could find GM 100% at fault and Soo Line not at fault, despite Soo Line’s nondelegable duty. Unless the fact finder does so, indemnity is not available to Soo Line because its liability would not be entirely derivative or vicarious. Because the jury might conceivably allocate to GM 100% of the fault, we conclude that GM is not entitled to summary judgment on Soo Line’s indemnity claim.

For the foregoing reasons, we reverse and remand to the district court.

Reversed and remanded.

      . For ease of discussion, the LIA and the BIA will be referred to as "LIA.”

      . According to Soo Line, the SD60's handbrake allows loose or slack chain in the doubler assembly to become tangled. Soo Line claims that if the tangled chain releases while the handbrake is being applied, the loss of resistance will cause the handwheel to unexpectedly slip, and that this is what caused Engvall's injuries. Soo Line claims that a metal deflector plate could have been installed above the doubler assembly to prevent such entanglements and the resulting slippage.

      . The court of appeals initially dismissed Soo Line's appeal as untimely. Granting review, this court reversed and remanded for consideration of Soo Line’s appeal on the merits. Engvall v. Soo Line R.R., 605 N.W.2d 738 (Minn.2000) (Engvall I).

      . The Secretary of Transportation, acting through the FRA, may promulgate regulations to implement the requirements of the LIA. 49 U.S.C. § 20103 (1994); 49 C.F.R. § 1.49(c)(5), (g) (2000). The Interstate Commerce Commission (ICC) originally regulated locomotives and other railroad equipment, but its authority was transferred to the Secretary of Transportation in 1966. Pub.L. No. 89-670, § 6(e)(1), 80 Stat. 931 (Oct. 15, 1966); see Napier v. Atl. Coast Line R.R., 272 U.S. 605, 608, 47 S.Ct. 207, 71 L.Ed. 432 (1926).

      . The LIA provides that "[a] railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances * * * are in proper condition and safe to operate without unnecessary danger of personal injury." 49 U.S.C. § 20701(1).

      . Moreover, despite its conclusion that a jury may not determine whether the BIA specifically requires the use of fusible plugs, the Court noted that "/i/he presence or absence of a fusible plug was a matter properly to be taken into consideration in connection with other facts bearing upon the kind and condition of the boiler in determining the essential and ultimate question, i.e. whether the boiler was in the condition required by the act.” Groeger, 266 U.S. at 531, 45 S.Ct. 169 (emphasis added).

      . GM also asserts that its position is supported by the Supreme Court's decision in Napier. GM correctly notes that, according to Napier, the FRA has exclusive authority to specify the equipment to be used on locomotives. Napier, 272 U.S. at 612-13, 47 S.Ct. 207. This is entirely consistent with Groeger, which similarly rejected the notion that a jury may determine whether a locomotive must be equipped with a particular piece of equipment. But, as Groeger makes clear, the issue of whether a locomotive is “in proper condition and safe to operate” under the LIA is a separate question, and one which a jury may properly decide. Groeger, 266 U.S. at 527-28, 45 S.Ct. 169.

      . As with the LIA, a violation of the SAA constitutes negligence per se under the FELA. Urie, 337 U.S. at 189, 69 S.Ct. 1018. Railroad equipment manufacturers are subject to the SAA by operation of 49 U.S.C. § 21302.

      . Citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), Soo Line also argues that "in at least one other federal regulatory context, the United States Supreme Court has held that a state law negligence per se claim is not preempted * ⅜ * if * * * premised upon violation of the pertinent federal regulations." Medtronic is distinguishable, however, because the Court held that, under the express preemption provision of the statute at issue, "a state law will [in most cases] be pre-empted only to the extent that the FDA has promulgated a relevant federal 'requirement.'” Id. at 496, 116 S.Ct. 2240. The Court observed that the FDA was "uniquely qualified to determine" whether a given state law prevented the full realization of Congress' objectives and purposes, and therefore should be preempted, and that the FDA had expressly stated that the statute does not preempt state requirements that are equal or substantially identical to the statute's requirements. Id. at 496-97, 116 S.Ct. 2240. In contrast, the Court has held that the LIA "was intended to occupy the field" of regulating locomotive equipment, and that state standards within this field are preempted even in the absence of a specific FRA regulation. Napier v. Atl. Coast Line R.R., 272 U.S. 605, 613, 47 S.Ct. 207, 71 L.Ed. 432 (1926).

      . Nor do we find GM's “nondelegable duty” argument persuasive. As we noted previously, several federal courts have held that a railroad may seek contribution or indemnity from a third party for liability incurred under the FELA when state law permits. See, e.g., Ellison v. Shell Oil Co., 882 F.2d 349, 353-54 (9th Cir.1989); Shields v. Consol. Rail Corp., 810 F.2d 397, 399 (3d Cir.1987); Ala. Great S. R.R. v. Chi. & Northwestern Ry., 493 F.2d 979, 983 (8th Cir.1974); Fort Worth & Denver Ry. Co. v. Threadgill, 228 F.2d 307, 312 (5th Cir.1955); Stephens v. S. Pac. Transp. Co., 991 F.Supp. 618, 620 (S.D.Tex.1998). Both Ellison and Stephens explicitly rejected the "non-delegable duty” argument raised by GM. Ellison, 882 F.2d at 353 (“The FELA's purpose of providing recovery for injured workers is not defeated by permitting an employer to recoup its losses in part or in full from a third party, when the circumstances and state law permit.”); Stephens, 991 F.Supp. at 620 (“While an employer's duties under FELA may be non-delegable, there also exist separate, independent duties which a third party may owe to either the plaintiff-employee or the defendant-employer, or both.”).


text:
    In re RAHR MALTING COMPANY, Petitioner. In re Rahr Malting Company, Petitioner, v. County of Scott, Respondent.
    No. CX-00-1676.
    Supreme Court of Minnesota.
    Aug. 2, 2001.

      Thomas J. Radio, Rolfe A. Worden, Jodi L. Johnson, Hinshaw & Culbertson, Minneapolis, for appellants.
    Thomas J. Harbison, County Atty., Susan McNellis, Asst. County Atty., R. Lawrence Harris, Special Asst. County Atty., for respondent.
   OPINION

PAGE, Justice.

Through a petition for a writ of prohibition, Rahr Malting Company (Rahr) asks this court to prohibit the Minnesota Tax Court from holding a public trial in its appeal of a tax valuation of its malting facility. The tax court denied Rahr’s motion to close portions of the trial to the public and to seal portions of the record to protect certain proprietary information. Rahr claims that, if the tax court does not protect the privacy of its proprietary information and the information becomes available to its competitors and customers, the disclosure will have a devastating negative impact on its business. We decline to issue a writ of prohibition, but remand for further proceedings consistent with this opinion.

Rahr is a privately held company with a malting plant in Shakopee, Minnesota. Rahr challenged Scott County’s property tax assessment of its Shakopee facility for tax years 1998 and 1999. Without opposition from the county, Rahr obtained a protective order from the tax court deeming all information given to the county by Rahr to be data classified under the Minnesota Government Data Practices Act as nonpublic data. See Minn.Stat. § 13.51, subd. 2 (2000). The protective order provided that the classification of the information was to continue “[djuring the pen-dency of this action, including any and all appeals.”

After discovery was complete, Rahr learned that the county would not agree to close the trial to maintain the confidentiality of the data it had provided. Rahr filed a motion in limine with the tax court asking the court, consistent with its protection order, to close the trial to the public “during any testimony pertaining to trade secrets and proprietary information.” In support of this motion, Rahr submitted the affidavit of its Chief Executive Officer, John Alsip. According to Alsip, Rahr is one of four major malt producers in the United States and has only two main customers. At the hearing on the motion, which was apparently open to the public, Alsip testified that if Rahr’s customers obtained the data Rahr provided to the county during discovery the customers could force down Rahr’s marginal profits. He also claimed that if Rahr’s competitors obtained the data they could price against Rahr in a manner that would threaten Rahr’s viability. Alsip noted that Rahr is a relatively small company compared to its competitors and is especially careful with the data, allowing access only to essential employees and key shareholders.

Alsip testified that Rahr is concerned about protecting: sales data, cost of grain, gross margin for malting (the sale price of malt less the acquisition cost of the un-malted grain), certain general and administrative expenses, dealings between Rahr and its Canadian subsidiary, costs associated with operating lines of credit, nature and extent of working capital, amount of money borrowed, overall profitability of the company, price charged for malt, and the quantity of product the company ships to a given customer. Alsip did not identify which of this information constituted trade secrets, as opposed to merely proprietary information.

The tax court denied Rahr’s motion in limine. The court interpreted its previous order to apply only to pretrial discovery not divulged in the course of the trial. The court held that it was precluded from closing the trial and sealing trial records by Minn.Stat. § 271.06, subd. 6 (2000), which states that “[t]he tax court shall hold a public hearing in every case,” and Minn.R. 8610.0120, subp. 1, which states, “[hjearings before the tax court are open to the public.” The court acknowledged that in a previous decision, Northwest Racquet, Swim & Health Clubs, Inc. v. County of Dakota, Nos. C1-94-7204, CX-94-4126, 1995 WL 377080 (Minn. T.C. June 20, 1995), it stated it would close the tax hearing only when, on balance, the privacy interests of the litigant outweighed the policy considerations underlying the “extremely strong” presumption in favor of open hearings. Rahr Malting Co. v. County of Scott, Nos. 99-03807, 00-01171, 2000 WL 967457; at *2 (Minn. T.C. July 15, 2000).

The tax court found the evidence presented by Rahr to be mere assertion that disclosure would be harmful and concluded that the assertion was not clear proof of the nature and degree of harm Rahr would suffer, as required by Northwest Racquet. See id., 1995 WL 377080 at *4. The court noted that in a previous tax appeal Rahr had disclosed some of the information that it was now seeking to protect. The court also noted that public hearings tend to maintain public confidence in the tax appeal system and that Rahr’s novel use of the income approach to valuation in the case could lead to a precedent-setting decision in which other tax petitioners might have an interest. The court denied the motion in limine on July 10,2000.

In August 2000, Rahr sought discretionary review of the tax court’s decision in this court, which we denied as not provided for in statute or the existing Rules of Civil Appellate Procedure. See Minn.Stat. § 271.10, subd. 1 (2000) (providing that only final orders of the tax court are ap-pealable); Minn.R.Civ.App.P. 105.01 (providing for discretionary review by supreme court of decisions of tax court effective March 1, 2001). Rahr then petitioned for a writ of prohibition, seeking an order from this court requiring the tax court to remove “all persons other than Petitioner and Respondent during any testimony pertaining to trade secrets and proprietary information relating to costs, expenses and profit margins” and to seal “[a]ny trial exhibits and any portions of the transcript and trial briefs discussing trade secrets and proprietary information relating to costs, expenses, and profit margins.”

A writ of prohibition may be issued when: (1) an inferior court or tribunal is about to exercise judicial or quasi-judicial power; (2) the exercise of power is unauthorized by law; and (3) the exercise of power will result in injury for which there is no adequate remedy. Minneapolis Star Tribune Co. v. Schumacher, 392 N.W.2d 197, 208 (Minn.1986). The county does not dispute that the order denying Rahr’s motion in limine was issued in the exercise of the tax court’s quasi-judicial power, so we are left to consider the second and third requirements for issuance of a writ of prohibition.

The county contends that the tax court’s exercise of power is not unauthorized by law because tax court hearings are required to be open under state statute and rule. See Minn.Stat. § 271.06, subd. 6; Minn.R. 8610.0120, subp. 1. This court has recognized that the analogous common law right of access to court records is not absolute, however. Schumacher, 392 N.W.2d at 202. Each case involves a weighing of the policies in favor of openness against the interests of the litigant in sealing the record. Id. at 202-03. We consider whether the tax court abused its discretion in denying Rahr’s request to close the hearing and seal records. See id.

In this case, the tax court’s refusal to close the trial and seal the court records was not an unauthorized exercise of power. The tax court is in the best position to weigh the competing needs and interests of the parties, and here the court simply found that, in light of the strong presumption in favor of open proceedings and the statute mandating a public trial, Rahr failed to make an adequate showing of the harm it would suffer if disclosure were allowed. The court’s finding is supported by the record, as the affidavit and testimony stated only in conclusory terms that disclosure of the data would be “devastating” and affect the “survivability” of the company. Although Rahr claims some of the information it seeks to protect constitutes trade secrets, Rahr does not explain how the information satisfies the criteria established in Minn.Stat. § 325C.01, subd. 5 (2000). Conclusory allegations of harm do not support a finding that data constitutes a trade secret. See Int’l Bus. Mach. Corp. v. Seagate Tech., Inc., 941 F.Supp. 98, 101 (D.Minn.1992) (holding injunction will not issue on “mere suspicion or apprehension of injury” from disclosure; interpreting Minnesota Trade Secrets Act). Because Rahr cannot show that the tax court’s action was unauthorized, the court’s denial of the motion in limine does not meet the requirements for issuance of a writ of prohibition.

Denial of the petition for a writ of prohibition notwithstanding, it is not clear from the record that Rahr had an adequate opportunity to fully present its case for closure of the, trial at the hearing on the motion in limine. Nothing in the transcript of the hearing indicates it was closed to the public. Rahr may have been inhibited in its presentation of evidence by the public nature of that hearing. In the past, we have encouraged trial courts to hold in camera hearings to weigh the competing interests at stake in disclosure of confidential information. See, e.g., State v. Turner, 550 N.W.2d 622, 620 (Minn.1996) (authorizing in camera hearing to evaluate whether newspaper reporter should be compelled to disclose unpublished information regarding a crime); Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn.1987) (remanding for in camera review of requested discovery in order to balance competing interests at stake); State v. Paradee, 408 N.W.2d 640, 642 (Minn.1987) (requiring that court review welfare department records in camera in child sex abuse case); Syrovatka v. State, 278 N.W.2d 558, 562 (Minn.1979) (remanding for in camera hearing to determine if confidential informant’s testimony was necessary for a fair trial). Indeed, the Trade Secrets Act specifically provides for in camera hearings to determine whether particular information qualifies as a trade secret. Minn.Stat. § 325C.05 (2000). When a party claims that a tax court hearing must be closed to protect trade secrets or other proprietary information, the court should hold a hearing in camera to determine if the information meets the definition of a trade secret or otherwise merits protection. Use of this procedure will enable a party to explain in sufficient detail the nature of the information it seeks to protect and the consequences of disclosure.

We agree with the tax court that Rahr has not presented facts that outweigh the strong presumption in favor of a public trial. However, because it is not clear from the record whether Rahr had an adequate opportunity to present facts in support of its motion in limine, we remand for further proceedings consistent with this opinion.

Petition denied, remanded for further proceedings.

BLATZ, C.J., took no part in the consideration or decision of this case.

      . The income approach, market comparison approach, and cost approach are the three traditional methods to determining the market value of real estate. Am. Express Fin. Advisors, Inc. v. County of Carver, 573 N.W.2d 651, 657 (Minn.1998). Appraisers must consider all relevant factors to valuation and, whenever possible, should use at least two approaches to determine market value. Equitable Life Assurance Soc’y of the United States v. County of Ramsey, 530 N.W.2d 544, 553-54 (Minn.1995).

      . Because we hold that the tax court's action was not unauthorized by law, we need not determine whether the tax court’s exercise of power will result in an injury to Rahr for which there is no adequate remedy. See Schumacher, 392 N.W.2d at 208.