author: KONENKAMP, Justice. SABERS, ’ Justice

text:
    2001 SD 42
    James R. GARLAND, Plaintiff and Appellee, v. Ralph ROSSKNECHT, Defendant and Appellant.
    No. 21553.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 18, 2001.
    Decided March 28, 2001.

      Timothy J. Rensch, Rapid City, SD, Attorney for plaintiff and appellee.
    Donald A. Porter of Costello, Porter, Hill, Heisterkamp, & Bushnell, Rapid City, SD, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we hold that the circuit court erred in allowing an economist to assign the plaintiff a disability rating. We affirm the jury’s verdict on negligence, but reverse for a new trial on damages.

Background

[¶2.] On March 3, 1995, James Garland and Ralph Rossknecht collided at thé intersection of Haines Avenue and Crazy Horse Street in Rapid City, South Dakota. Haines runs north and south and Crazy Horse, east and west. The intersection is controlled by stop signs on Crazy Horse. Vehicles on Haines have the right-of way. Rossknecht testified that he was traveling west on Crazy Horse and approached the intersection intending to turn left onto Haines. He" looked first to the right and then to the left and “felt there was no approaching traffic.” He then proceeded into the intersection and while “double-checking” traffic to the north he first saw Garland’s vehicle “coming from' [the] right side.” Garland testified that he was southbound on Haines, traveling approximately thirty-two or thirty-three miles per hour. The speed limit on Haines is thirty-five. Garland was halfway through the intersection when he saw Rossknecht’s Jeep “coming at [him].” The collision occurred in Garland’s lane of traffic. The right corner of Rossknecht’s front bumper struck Garland’s left rear wheel. According to Garland, the collision caused his car to “scoot” or “fishtail” toward “the direction ... he hit me.”

[¶ 3.] Garland reported no medical problems at the time, but after he went home his neck felt “tingly and, um just weird.” When he awoke the next day, he had a “constant, nagging headache feeling in [his] neck.” He sought medical treatment from a chiropractor, Dr. Garry Gor-such, for problems with “cold feet, neck pain, fatigue, tension, mid-back stiffness and numbness in [his] fingers.” Before the accident, Garland had seen Dr. Gor-such s occasionally for wellness check-ups. After the accident, Garland underwent an extensive course of treatment with Dr. Gorsuch and eventually with Gorsuch’s partner, Dr. Scherr, for pain in his back and neck. The treatments lasted from March 1995 to October 1996.

[¶ 4.] Scherr concluded that Garland suffered from a seven percent whole person permanent impairment. This degree of physical impairment, according to Scherr, would restrict Garland’s ability to sit in one position for long periods and work or lift with his arms overhead. Schérr’s assessment was limited to physical impairment. He would not assign a vocational disability rating, as he felt that a vocational rehábilitationist should make that determination. In Scherr’s view, physical impairment ratings do not translate into disability ratings because “disability is based upbn what you cannot do in regards to a given employment.”

[¶ 5.] Garland brought a negligence action against Rossknecht, seeking damages for medical bills, pain and suffering, lost wages, and dimipished earning capacity. In addition to the expertise of his two treating chiropractors, Garland offered the testimony of Don Frankenfeld, a forensic economist. Frankenfeld assessed Garland’s earning capacity in his chosen field, graphic design. His opinions were challenged in a pretrial hearing and later ruled admissible over objections from the defense.

[¶ 6.] In the process of calculating reduced earning capacity, Frankenfeld concluded that Garland suffered from a ten percent “disability” or earning capacity reduction. When questioned about how he arrived at this percentage, Frankenfeld stated, “it was a judgment call.” In fact, his opinion was based solely on information conveyed from Garland. Garland reported that when he worked on a four-hour graphic design project, he had to take a half hour break. Frankenfeld extrapolated a half hour break every four hours into one hour of nonproductivity a day. He then took “one and divide[d] it by eight, one hour a day out of an eight-hour day is one-eighth, twelve and a half percent.” Then he discounted the rating to ten percent.

[¶ 7.] Frankenfeld admitted that impairment ratings do not translate directly into disability ratings and that he had no expertise in converting “impairment ratings into physical vocational limitations.” Furthermore, he conceded “a vocational expert has competence that I do not have to take physical limitations and translate them into vocational limitations.” After hearing this testimony, the circuit court nonetheless allowed Frankenfeld to testify without limitation. Frankenfeld offered the jury a range of figures representing the present value of any reduction in Garland’s earning capacity. Included in that range was a calculation based on a ten percent disability and an eight dollar per hour rate of earning, which produced a loss of $90,744. Frankenfeld also calculated damages based on higher and lower disability ratings.

[¶ 8.] At the end of the two day trial, the jury returned a general verdict of $50,600 for Garland. Rossknecht appeals.

1. Disability Rating

[¶ 9.] Rossknecht urges us to hold that the circuit court erred in allowing an economist to assign a disability rating for Garland, especially as it was based only on Garland’s self-appraisal of his work capacities. Trial courts enjoy broad discretion in ruling on the admissibility of expert opinions. In re Estate of Dokken, 2000 SD 9, ¶ 11, 604 N.W.2d 487, 491 (citing State v. Edelman, 1999 SD 52, ¶ 4, 598 N.W.2d 419, 421) (further citations omitted). We will not reverse a court’s evidentiary rulings absent a clear abuse of discretion. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d at 421. See also Nickles v. Schild, 2000 SD 131, ¶ 7, 617 N.W.2d 659, 661 (citations omitted).

[¶ 10.] The circuit court found that Rossknecht’s foundational objections went to “credibility, not admissibility,” reasoning that the jury should decide whether the information on which Frankenfeld relied was credible. It is true that challenges to the facts underlying an expert’s opinion present issues for a jury. Stormo v. Strong, 469 N.W.2d 816, 821 (S.D.1991). However, when dealing with expert opinion, the court must fulfill a gatekeeping function, ensuring that the opinion meets the prerequisites of relevance and reliability before admission. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469, 485 (1993); State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) (citations omitted); Rogen v. Monson, 2000 SD 51, ¶¶ 26 27, 609 N.W.2d 456, 462 (Konenkamp, J. concurring specially) (Daubert applies to medical opinions).

[¶ 11.'] Daubert and its progeny qffer general guides for courts to consider in assessing reliability: testing, peer review, error rate, and general acceptance. See Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-84. These factors cannot be applied in all settings. In some instances, reliability must focus on “knowledge and experience.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238, 251 (1999). A fundamental baseline for reliability is that experts are limited to offering opinions within their expertise. See Brain v. Mann, 129 Wis.2d 447, 385 N.W.2d 227, 230 (1986) (citations omitted).

[¶ 12.] Frankenfeld, a forensic economist, specializes in projecting earning loss-over time, not in assessing vocational disabilities. He conceded' as much in the pretrial hearing: “[a] vocational expert has competence that I do not have to take physical limitations and translate those into vocational limitations. That’s not an area that I get into, but it is possible.” According to his chiropractor, Garland suffers a seven percent physical impairment rating; however, a physical impairment does not directly translate into any vocational disability. Marnette v. Morgan, 485 N.W.2d 595, 598 (S.D.1992). Frankenfeld’s opinion did not hinge on a physical impairment rating. Instead, he relied solely on Garland’s assertion that he must take a thirty minute break every four hours. Thus, Frankenfeld, who admits that he has no competence as a vocational expert, converted one hour of claimed non-productivity a day into a ten percent disability. Frankenfeld also acknowledged that in most instances where he testifies concerning economic loss, he does so based on the analysis of a vocational expert. We conclude that his opinion cannot be considered reliable.

[¶ 13.] Other jurisdictions have addressed the proper scope of an economist’s testimony in claims for earning impairment. In Lamphere v. Agriew, 94 N.M. 146, 607 P.2d 1164, 1167 (App.1979), the court refused to allow the testimony of an economist for lack of proper foundation. There, the absence of medical testimony on the plaintiffs percentage of disability precluded the economist from translating evidence of specific physical disabilities into a “quantifiable future loss.” Id. Likewise, in Morgan v. Cashion, 638 S.W.2d 387, 391 (Tenn.Ct.App.1982), the court refused to admit an economist’s opinion purporting to convert an anatomical disability (physical impairment) into a work disability-

[¶ 14.] Garland refers to our statement in Mamette that disabilities may be proven with testimony from an expert “other than a doctor.” Marnette, 485 N.W.2d at 598; see also Caldwell v. John Morrell & Co., 489 N.W.2d 353, 363 n. 2 (SD 1992). This argument is unpersuasive for two reasons. First, the statement cannot be viewed as support for allowing experts to testify to matters wholly outside their expertise. Second, the statement merely reiterates the common proposition that in some instances injury will be obvious, thus expert testimony might be advisable but is not required. See Caldwell, 489 N.W.2d at 362. On the other hand, an expert is required when the subject matter falls outside the common experience of lay persons. Id. See also Mc Govern v. Murray Taxi Co., 75 S.D. 151, 60 N.W.2d 211, 213-14 (S.D.1953).

[¶ 15.] The circuit court abused its discretion in allowing the economist’s opinion on Garland’s percentage of disability.

2. Denial of Directed Verdict

[¶ 16.] Rossknecht contends that the trial court erred in denying his motion for directed verdict. He claims that Garland made an insufficient showing of negligence. “If any legally sufficient basis exists to support a verdict for the nonmoving party, the motion must be denied.” Jurrens v. Lorenz Mfg. Co., 1998 SD 49, ¶ 5, 578 N.W.2d 151, 153 (citations omitted). We view the evidence in a light most favorable to the nonmoving party. McDonough v. Kahle, 1999 SD 14, ¶ 8, 588 N.W.2d 600, 602 (citing Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989)) (further citations omitted). A trial court’s ruling on a directed verdict motion is presumed correct, and we will not seek reasons to reverse it. United States and Hartzell Propellar, Inc. v. South Dakota, 1999 SD 94, ¶ 7, 598 N.W.2d 208, 211 (citations omitted). A directed verdict in a negligence action is ordinarily inadvisable because the “reasonableness” standard must be applied to conflicting testimony. Carpenter v. City of Belle Fourche, 2000 SD 55, ¶ 8, 609 N.W.2d 751, 757.

[¶ 17.] Rossknecht relies on the following language in Carpenter: “the mere occurrence of an accident in a protected intersection will not of itself establish negligence against the unfavored driver.” Id. at ¶ 16, 609 N.W.2d at 759. He insists that the collision itself is the only evidence of negligence; therefore, the circuit court should have directed a verdict in his favor. Rossknecht’s reliance on Carpenter is entirely misplaced. Our statement in Carpenter simply emphasized that questions of negligence or contributory negligence in intersectional accidents are generally factual questions for the jury. 2000 SD 55, ¶ 14, 609 N.W.2d at 759. More specifically, we noted that “[w]hether one looked and failed to see a vehicle within the zone of danger is a jury question, except in those rare instances when the evidence is so definite that reasonable minds could not differ.” Id. at ¶ 16.

[¶ 18.] Rossknecht invokes his own trial testimony as undisputed proof that he acted reasonably and without negligence. Of course, the jury had to listen to both sides and consider the testimony in context with the vehicle damage. The right corner of Rossknecht’s bumper collided with the left rear wheel of Garland’s vehicle. Rossknecht ran into Garland’s vehicle as it proceeded through the intersection. “When witnesses testify that they did in fact look, the question whether they looked with the proper care and saw all that they should have seen is one of fact.” Carpenter, 2000 SD 55, ¶26, 609 N.W.2d at 762. The trial court correctly denied a-directed verdict and submitted the case to the jury under proper instructions.

[¶ 19.] Affirmed in part, reversed in part, and remanded for a new trial on damages.

[¶ 20.] MILLER, Chief Justice, and AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 21.] SABERS, J., concurs in part and dissents in part.

SABERS, ’ Justice

(concurring in part and dissenting in part).

[¶ 22.] I concur with the majority opinion on all issues except for its proposal for a partial remand. We should instead reverse and remand for a full trial on liability and damages.

[¶ 23.] There are occasions where a partial remand is an appropriate remedy. A partial remand is warranted when the errant part of the judgment below is severable from the rest of the trial. Kneip v. Unitedbank-Victoria, 734 S.W.2d 130, 137 (Tex.App.1987); see also Lien v. McGladrey & Pullen, 509 N.W.2d 421, 427 (S.D. 1983). However, the majority opinion s remand for retrial on exclusively damages “would not be in the interest of justice and [it] would be unfair to the parties to retry the case piecemeal.” Kneip, 734 S.W.2d at 137.

[¶ 24.] This is a negligence action arising from a motor vehicle collision. The defendant, Rossknecht, has asserted as affirmative defenses that Garland was either contributorily negligent or assumed the risk of this collision. These defenses relate directly to the damage issue in this case. These defenses also relate directly to the negligence issue in this case. In this instance, a retrial for damages only would hamper a jury’s ability to grasp the proper view of this case. See Prouse v. Ransom, 117 Idaho 734, 791 P.2d 1313, 1316 (Idaho App.1989) (acknowledging that in a partial remand the precise effect of the error is difficult to quantify); Roberts v. Mullen, 446 S.W.2d 86, 89 (Tex Civ 1969) (stating that “issues of liability and damages in tort cases are indivisible and it is improper to reverse a judgment and remand the case for trial on the issue of damages only”).

, [¶ 25.] The proposed bifurcated proceeding urged by the majority opinion is justified “only if the matter is clearly separable without unfairness to the parties.” Evans v. First National Bank of Bellville, 946 S.W.2d 367, 380 (Tex.App.1997). I submit the addition of a vocational expert is not enough to properly decide the issue of damages. There is no justification for partial remand .based on judicial economy because the jury will be forced to hear additional evidence to properly decide this case. I submit that a remand for a full new trial is preferable as the jury should hear the entire evidence before attempting to make a determination on damages.

      . Garland was in high school at the time of the accident. In the time between the accident and the trial, he graduated from high school and enrolled in a graphic design program at Brooks College of Design and Merchandising.

      . Frankenfeld offered the jury a range of calculations based on varying disability ratings and projected earnings. With a ten percent disability and earnings at minimum wage, for instance, he figured a loss of $76,681. He recalculated damages for earnings at eight dollars an hour, and twelve dollars an hour. He also gave the jury his calculations for disability ratings of five percent, seven percent, and twenty percent.

      . Testimony on Garland’s vocational disability was clearly relevant to his prayer for damages for his loss of earning capacity. Consequently our analysis focuses on the reliability of such testimony.

      . In Mamette we cited our workers’ compensation case law defining the difference between permanent medical impairment and vocational disability:
      Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment.

        Marnette, 485 N.W.2d at 598 (citing Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 552 (S.D.1990)) (italics omitted).


source: Caselaw Access Project

author: BASTIAN, Circuit Judge.

license: Public Domain

text:
    2001 SD 46
    TRUCK INSURANCE EXCHANGE, Plaintiff and Appellee, v. CNA, Defendant and Appellee, and Dodson Insurance Group, Defendant and Appellant.
    Nos. 21399, 21406.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 28, 2000.
    Decided April 11, 2001.

      Kristine L. Kreiter of Woods, Fuller, Shultz & Smith, Sioux Palls, SD, Attorneys for appellee Truck Insurance Exchange.
    Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, SD, Attorneys for appellee CNA.
    Kristi Geisler Holm and Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellant Dodson Insurance Group.
   BASTIAN, Circuit Judge.

[¶ 1.] Dodson Insurance Group (Dodson) appeals trial court orders holding it solely liable for all workers’ compensation benefits pertaining to work-related injuries sustained by Phyllis Kubal (Kubal) at the Yankton Medical Clinic. Kubal’s repetitive work activities eventually resulted in trapezium implants in both thumbs. The trial court discharged CNA and Truck Insurance Exchange (Truck) from liability. We affirm.

[¶ 2.] This is the second time this case has come before this Court. In Truck Ins. Exchange v. Kubal, 1997 SD 37, 561 N.W.2d 674, Truck petitioned for a hearing before the Department of Labor to recover from Dodson and CNA for benefits it had paid to Kubal or, alternatively, to have the benefits apportioned among the insurers. On appeal, we held that the circuit court properly dismissed the petition for lack of subject matter jurisdiction.

[¶ 8.] Truck subsequently commenced a civil action and moved for summary judgment against CNA and Dodson. Truck claimed that Kubal’s injuries to her thumbs, which arose out of and in the course of her employment at the clinic, were present prior to October 1, 1992 when Truck came onto the risk as the Clinic’s workers’ compensation insurer. Truck further claimed that Kubal’s subsequent complaints and the treatment of her thumbs did not represent a new injury or an aggravation of a prior injury or condition. Dodson also moved for summary judgment claiming that Kubal’s employment activities after October 1990, when Dodson was no longer on the risk, independently contributed to and aggravated her condition. The trial court granted summary judgment to Truck and denied summary judgment to Dodson.

[¶ 4.] Dodson later moved for summary judgment against CNA making the same claim it previously urged against Truck. CNA also moved for summary judgment. The trial court denied both motions finding the existence of material issues of fact. Both parties subsequently waived trial and submitted, the case to the trial court on the record. The court discharged CNA from all liability and found that Dodson was liable for all workers’ compensation benefits related to Kubal’s thumb injuries occurring at the Clinic.

[¶ 5.] Dodson has appealed the adverse rulings by the trial court. CNA has filed a notice of review claiming the trial court erred when granting summary judgment in favor of Truck.

FACTS

[¶ 6.] All factual issues presented in this appeal were submitted to the trial court on the record. We review findings based on deposition testimony and documentary evidence under a de novo standard of review. Wagaman v. Sioux Falls Const. 1998 SD 27, ¶ 12, 576 N.W.2d 287, 240. From this review, we elicit the following facts.

[¶ 7.] In 1981, Kubal began her employment with the Yankton Medical Clinic (Clinic) in the medical records department performing clerical duties. During her employment, the Clinic changed workers’ compensation insurers several times. Dodson provided coverage from October 1, 1989 to October 1, 1990; CNA provided coverage from October 1, 1990 to October 1, 1992; and Truck provided coverage from October 1, 1992 through the relevant time in question.

[¶ 8.] Prior to February 1990, Kubal experienced a tingling and numbness in her left hand that caused her pain and discomfort. The onset was not sudden; her condition became progressively worse over time. She testified that she also had problems with her right thumb that were concurrent with the problems in her left hand but that “the apparent, the more severe pain” was in her left hand because of its dominance.

[¶ 9.] In February 1990, Kubal consulted Dr. Robert Neumayr, one of the Clinic physicians, about the hand problems she had been experiencing for more than a month. However, Kubal did not complain to Dr. Neumayr about her right thumb pain. Dr. Neumayr later testified that, to a degree of reasonable medical certainty, the repetitive nature of Kubal’s employment duties caused the condition in her left hand.

[¶ 10.] During the February 1990 visit, Kubal told Dr. Neumayr that her pain was made worse by work. Dr. Neumayr ordered an x-ray of her left hand. In Dr. Neumayr’s opinion, the x-ray showed arthritis in Kubal’s joints. Dr. Neumayr also testified that he was not surprised that Kubal had bilateral trouble because she used both hands for repetitive activities in her work.

[¶ 11.] Kubal was able to continue working without restrictions at the Clinic but experienced the same symptoms in her hands for the next two years. Eventually, as the condition of her hands worsened, she complained again.

[¶ 12.] Kubal also suffered from a recurring back problem and, in July 1992, Dr. Neumayr referred her to Dr. Marques Rhoades, an orthopedic surgeon. During her first consultation, Kubal complained of pain and numbness in her hands, the left being worse than the right. X-rays showed degenerative changes in the metacarpal joints of both thumbs. Dr. Rhoades performed a nerve conduction study on both hands and found that Kubal had bilateral carpal tunnel syndrome with a more severe condition in her left hand.

[¶ 13.] After being specifically asked when the thumb problem first manifested itself, Dr. Rhoades .was unable to give a definitive answer. He stated, “Oh, it would have been sometime around 1992, I would say ... if Dr. Neumayr took some x-rays in 1990 she must have been having some pain then. I don’t know, I can’t comment for him, but it could have been the carpal tunnel or it could have been early arthritis that just wasn’t manifest by an x-ray yet.”

[¶ 14.] Kubal had carpal tunnel surgery on the left hand in September 1992. Following surgery, the thumb pain became much more apparent, but remained the same familiar pain that Kubal had been experiencing since February 1990. When Kubal returned to Dr. Rhoades in November 1992 to renew her complaints about her thumbs, Dr. Rhoades found crepitation and pain in the metacarpal joints of both thumbs. Dr. Rhoades concluded that Ku-bal’s thumb pain had existed concurrently with the carpal tunnel pain, but was masked by the carpal tunnel pain until Kubal underwent surgery for that condition. Trapezium implants were performed on. Kubal’s thumbs during two separate surgeries in 1993.

[¶ 15.] Other facts will be discussed as necessary below.

DECISION

[¶ 16.] This case requires the application of the “last injurious exposure rule.” The rule applies when considering successive injuries. Under that rule,

When a disability develops gradually, or when it comes as the result of a succession -of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.

Schuck v. John Morrell & Co., 529 N.W.2d 894, 900 (S.D.1995) (quoting Novak v. C.J. Grossenburg and Son, 89 S.D. 308, 311, 232 N.W.2d 463, 464-65 (1975)).

[¶ 17.] The application of the last injurious exposure rule to a particular claim is based on a factual determination: whether the successive injury is a mere recurrence or an independent aggravation of the first injury.

In successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first. If the second injury is an aggravation that contributes independently to the final disability then the subsequent employer/insurer is liable.

Schuck, 529 N.W.2d at 900.

[¶ 18.] The distinction between the meaning of these two concepts is gray. Enger v. EMC, 1997 SD 70, ¶ 17, 565 N.W.2d 79, 84. “ ‘If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for thé second.’ ” Id. (quoting 9 Arthur Larson, Larson’s Workmen’s Compensation Law § 95.23.)

[¶ 19.] Causation must be established to a reasonable medical probability, not just a possibility. Enger, 1997 SD 70 at ¶ 18, 565 N.W.2d at 85. When the medical evidence is not conclusive, the claimant has not met the burden of showing causation by a preponderance of the evidence. Id.

[¶20.] The core issue in this case is whether Kubal’s disability was a recurrence or an aggravation of the injury she reported in February 1990. In making this determination there are certain guidelines. To determine that an injury was an aggravation of a prior episode, the evidence must show: 1) a second injury'as that term is used in this jurisdiction; and 2) that this second injury contributed independently to the final disability. Paulson v. Black Hills Packing Co., 1996 SD 118, ¶ 12, 554 N.W.2d 194, 196. To determine that the second episode was a recurrence of the prior injury the evidence must show: 1) there have been persistent symptoms of the injury; and 2) no specific incident" that can independently explain the second onset of symptoms. Id. Because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident or injury and disability. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992).

[¶ 21.] Whether the trial court erred in granting summary judgment to Truck and denying summary judgment to Dodson?

[¶ 22.] Truck moved for summary judgment against CNA and Dodson claiming that Kubal’s thumb injuries were present prior to the time that Truck came onto the risk and that Kubal’s subsequent complaints and treatment did not represent a new injury or an aggravation of a prior injury or condition. Dodson moved for summary judgment claiming that Ku-bal’s employment activities after October 1990, when Dodson was no longer on the risk, independently contributed to and aggravated her condition. The relevant evidence consisted of the depositions of Kubal and Dr. Rhoades.

[¶23.] Our standard of review for a circuit court’s grant of a motion for summary judgment is well settled.

“Summary judgment shall be granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. On the other hand, ‘[t]he party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.’ ”

Zuke v. Presentation Sisters, Inc., 1999 SD 31, ¶ 14, 589 N.W.2d 925, 928 (quoting Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶6, 575 N.W.2d 457, 459).

[¶24.] We find that the trial court properly granted summary judgment in favor of Truck. In July 1992, Kubal complained of pain and numbness in her hands, the left being worse than the right. X-rays showed degenerative changes in the metacarpal joints of both thumbs. After carpal tunnel surgery in September 1992, her thumb pain became much more apparent but remained the same familiar pain that she had experienced since February 1990. In November 1992, Dr. Rhoades found crepitation and pain in the joints of both thumbs. Dr. Rhoades concluded that Kubal’s thumb pain had existed concurrently with the carpal tunnel pain.

[¶ 25.] Viewing the facts and all reasonable inferences in a light most favorable to the nonmoving parties and applying the last injurious exposure rule, there is no credible evidence to suggest that Kubal sustained any successive thumb injury or aggravation after October 1, 1992 when Truck came on the risk.

[¶ 26.] The trial court also properly denied summary judgment to Dodson. The evidence, when viewed most favorably to Truck and CNA, fails to show that Kubal sustained a second injury after October 1990 or that her continuing employment activities independently contributed to her condition.

[¶ 27.] Whether the trial court erred in determining that Dodson was liable for Kubal’s thumb injuries?

[¶ 28.] In determining successive carrier responsibility in recurrence/aggravation disputes, the “burden of proving the causative effect of the second event is upon the initial carrier seeking to shift responsibility for the consequences of the original injury.” Standard Distributing Co. v. Nally, 630 A.2d 640, 646 (Del.1993); see also 8 Arthur Larson et al., Larson’s Workers’ Compensation Law § 131.03[3][c] (2000) (burden of proof of showing a change in condition is normally on the party, whether claimant or employer, asserting the change).

[¶ 29.] Kubal stated the pain in her left thumb as well as numbness and tingling in her left hand prompted her to see Dr. Neumayr in February 1990. Kubal also stated the problems with her right thumb existed concurrently with the problems in her left hand. Dodson was the workers’ compensation insurer for the Clinic at the time Kubal first sought treatment in February 1990. Because Dodson asserted that a change in Kubal’s condition occurred during the time that CNA was the insurer for the Clinic, Dodson had the burden of proof on the issue.

[¶ 30.] The trial court found that Dodson failed to meet its burden of establishing an aggravation in either of Kubal’s thumbs and concluded that Dodson was liable for Kubal’s workers’ compensation benefits. We agree.

[¶ 31.] Liability may be shifted to CNA only if Dodson can prove an aggravation. Dodson “remains liable if the second injury is a mere recurrence of the first.” Schuck, 529 N.W.2d at 900. Evidence that an injury merely worsened is not sufficient to prove aggravation. Enger, 1997 SD 70 at ¶ 18, 565 N.W.2d at 84-85.

[¶ 32.] Kubal testified that, in February 1990, she “recognized the thumb pain was definitely there but it was just — to me it was just the left hand and the thumb probably in particular” because she is left-hand dominate. Dr. Neumayr testified that the x-ray of her hand showed “more than would be expected from wear and tear and that there was some arthritis.” Kubal also testified that her right thumb discomfort was concurrent with the pain in her left hand in 1990.

[¶ 33.] Kubal experienced basically the same symptoms from 1990 through 1992. When Kubal reported the pain to Dr. Rhoades in 1992, it was secondary to an unrelated back condition. Dr. Rhoades’ report of July 15, 1992 indicates that Ku-bal complained of “pain and numbness in the hands, left greater than the right,” and an x-ray found degenerative changes in both thumbs. After Kubal’s surgery in September 1992, the thumb pain became much more apparent after the carpal tunnel pain had been eliminated, but the thumb pain was not new; it was the same thumb pain that had existed since 1990. The examination by Dr. Rhoades in November 1992 again found joint pain in both thumbs.

[¶ 34.] Neither Dr. Neumayr nor Dr. Rhoades was able to provide an opinion that Kubal’s work activities after October 1, 1990 caused an aggravation of her thumb injuries. Moreover, the physicians’ testimony fails to address whether Kubal’s post-1990 work caused a second injury. There is no evidence to show that Kubal’s continued use of her hands during employment subsequent to the time that Dodson was on the risk contributed even slightly to the cause of the disability. See Enger, 1997 SD 70 at ¶ 9, 565 N.W.2d at 83. The disability was already in existence at the time Dodson left the risk. Id.

[¶ 35.] Furthermore, the evidence shows that Kubal’s successive thumb injuries were a recurrence under the last injurious exposure rule. First, Kubal had persistent symptoms of the injuries. Paulson, 1996 SD 118 at ¶ 12, 554 N.W.2d at 196. As previously discussed, Kubal testified that she was basically having the same kinds of symptoms in 1992 as in 1990 when Dodson was the workers’ compensation carrier. It was not new pain, but was familiar. Essentially, Kubal testified that her right thumb pain was concurrent with the pain in her left hand. Second, there is no evidence of any specific incident that could independently explain the onset of the symptoms. Id.

[¶ 36.] Affirmed.

[¶ 37.] MILLER, Chief Justice, AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 38.] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.

      . Contrary to the argument advanced in Dodson's brief, Dr. Neumayr did not testify that "the repetitive nature of Mrs. Kubal’s work after October 1, 1990, contributed independently to her left thumb condition." Rather, Dr. Neumayr merely stated that the period after October 1, 1990 is included in the time frame during which Kubal's condition was adversely affected by her employment duties. He further testified that he could not state that Kubal had no injury to her right hand prior to October 1, 1990.

      . CNA, then the Clinic’s workers’ compensation insurer, accepted liability for the surgery.

      . The deposition of Dr. Robert Neumayr was taken after the motions were decided.

      . Dodson argues in its brief that Dr. Rhoades testified that Kubal’s condition was aggravated by her employment. However, when viewed in context, it is clear that Dr. Rhoades was not applying the legal definition of the term but was testifying that her condition was made worse by continued work.


author: GILBERTSON, Justice.

text:
    2001 SD 45
    Darcy D. VanGORP, Plaintiff and Appellee, v. Charles L. SIEFF, Defendant and Appellant.
    No. 21663.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    Decided April 11, 2001.

      Scott Perrenoud, Michael A. Henderson, Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, for plaintiff and ap-pellee.
    Clair R. Gerry, Stuart, Gerry & Schlim-gen, Sioux Falls, South Dakota, for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] A mortgage upon the residence of Charles L. Sieff was foreclosed pursuant to SDCL chapter 21-49, known as the 180 Day Redemption Mortgage Act. Darcy D. VanGorp purchased the redemption rights of a junior lien holder, redeemed within the 180-day time limit, and received a sheriffs deed to the property. This forcible entry and detainer action was initiated because Sieff refused to vacate the property. The circuit court entered judgment for VanGorp, finding that Sieff s right of redemption had expired. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 15, 1992, Sieff executed a mortgage in favor of Rich Brothers, Co. (Rich Brothers). That mortgage was foreclosed on November 15, 1999 pursuant to SDCL chapter 21-49. At the sheriffs sale, Rich Brothers purchased the property for $38,663.57. A certificate of sale was filed with the Minnehaha County Register of Deeds on December 3, 1999, thereby commencing the 180-day redemption period under SDCL chapter 21-49.

[¶ 3.] On May 31, 2000, the 180th day, VanGorp purchased a right of redemption from Accounts Management, Inc., a lien holder junior to' Rich Brothers. That same day, he exercised his right of redemption by paying $51,312 to the Minne-haha County sheriff. This figure represented the amounts owed to Rich Brothers and two other lien holders who had previously redeemed the property. A sheriffs deed was issued to VanGorp on June 6, 2000. Several days after the 180-day period expired, Sieff attempted to redeem the property. Because more than 180 days had passed since the sale, the sheriff would not accept payment. Sieff also offered to buy the property from VanGorp, but no agreement was ever reached.

[¶ 4.] Although Sieff did not redeem the property within the 180-day redemption period, he continued to occupy the residence. On June 13, 2000, VanGorp commenced this action for forcible entry and detainer. In his answer, Sieff claimed he was entitled to an additional fifteen days during which to redeem pursuant to SDCL 21-52-7. The circuit court entered judgment . for VanGorp, finding that SDCL chapter 21-49 was an exclusive foreclosure method and therefore the rights conveyed under SDCL 21-52-7 did not apply to these proceedings. On appeal, Sieff raises the following three issues.

1. Whether Sieff was entitled to an additional fifteen days to redeem the property.
2. Whether the circuit court abused its discretion in failing to fashion an equitable remedy.
3. Whether the circuit court erred by not. entering findings of'-fact and conclusions of law.

STANDARD OF REVIEW

[¶ 5.] We review questions of statutory interpretation under the de novo standard, giving no deference to the circuit court’s conclusions. Steinberg v. State Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599. A circuit court’s decision as to an equitable remedy is reviewed only for abuse of discretion. Englehart v. Larson, 1997 SD 84, ¶ 12, 566 N.W.2d 152, 155.

ANALYSIS AND DECISION

[¶ 6.] 1. Whether Sieff was entitled to an additional fifteen days to redeem the property.

[¶ 7.] The foreclosure action brought by Rich Brothers was commenced under SDCL chapter 21-49, the 180 Day Redemption Mortgage Act. Under this chapter, the redemption period is shortened to 180 days, rather than the customary one-year period. Compare SDCL 21-49-38 with SDCL 21-52-11. To qualify for this shortened redemption period, the parties must agree, in the mortgage document, that the provisions of SDCL chapter 21-49 will govern. See SDCL 21-49-12. The mortgage at- issue included such -an agreement and there is no dispute that Sieffs property was properly foreclosed under SDCL chapter 21-49. After the foreclosure sale, the property may be redeemed within 180 days if the property is occupied, or within 60 days if the property has been abandoned. SDCL 21-49-38. SDCL 21^49-38 further provides': “[i]n no event may redemption be extended beyond the period of one hundred eighty consecutive days, computed from the date the certificate is recorded.” Sieff admits he did not redeem the property within the 180-day period.

[¶ 8.] In an attempt to avoid the effect of SDCL 21-49-38, Sieff claims he is entitled to an additional fifteen days after the expiration of the 180-day period, during which he, as owner of the property, may redeem. This contention is founded upon SDCL 21-52-7, which provides:

The owner, his grantee, or successor in interest shall at all times have the final right to redeem after any and all re-demptions as hereinafter provided shall have been made; and that right may be exercised by the owner, his grantee, or his successor in interest within fifteen days after the expiration of all other rights to redeem.

Sieff contends this statute extends the 180-day period under SDCL chapter 21-49. Additionally, Sieff notes that redemption statutes are to be liberally construed in favor of redemption. See Muller v. Harrison, 46 S.D. 2§5, 192 N.W. 750, 751 (1923).

[¶ 9.] In Phipps v. First Federal Sav. & Loan, 438 N.W.2d 814, 817 (S.D.1989), we held the protections of SDCL 21-47-8 (right to cure before judgment of foreclosure) did not apply in a foreclosure proceeding under SDCL chapter 21 — 49. We concluded that chapters “21-47, 21-48, and 21-49, are independent and complete in themselves.” Id. In making that decision, we noted the amount of repetition between the three chapters as to the procedures for foreclosure. Id. (comparing SDCL §§ 21-47-3 and 21-49-17, which both allow the joinder of, and entry of judgment “against any person other than the mortgagor who is obliged under the mortgage debt.”). Sieff attempts to distinguish the Phipps holding as it concerned only alternative foreclosure methods, while this case involves redemption. We are not persuaded.

[¶ 10.] While Phipps indeed dealt with alternative foreclosure methods, it properly recognized the independent nature of SDCL chapter 21 — 49. The repetition that served as the basis for our holding in Phipps is also apparent when chapter 21-52 is compared with the redemption provisions in chapter 21-49. Under both chapters, redemption is defined (§§ 21-49-31, 21-52-1) and waste is restrained (§§ 21 — 49-32, 21-52-2). There are provisions detailing who is entitled to redeem (§§ 21-49-33, 21-52-5), the payments necessary to redeem (§§ 21-49-34, 21-52-14), notice requirements (§§ 21 — 49-35, 21-52-16), contents of the certificate of redemption (§§ 21-49-36, 21-52-25, - 26), and providing the place where the certificate must be recorded (§§ 21-49-37, 21-52-27). We assume the Legislature did not intend to include duplicative, surplus language in its enactments. Steinberg, 2000 SD 36, ¶ 12, 607 N.W.2d at 601. Therefore, we must conclude the Legislature intended the provisions of SDCL chapter, 21-49 to stand alone, separate and apart from the provisions contained in chapter 21-52. Any other conclusion would reduce large portions of chapter 21-49 to surplusage.

[¶ 11.] It is clear that the 180 Day Redemption Mortgage Act was intended to operate independently of SDCL chapter 21-52. It is also dear that under no circumstances will more, than 180 days be allowed for any party to redeem the property foreclosed. See SDCL 21-49-38. As indicated, Sieff admits he did not redeem the property within the 180-day period. Therefore, his right of redemption expired.

[¶ 12.] Sieffs claim that we must liberally construe these statutes to allow redemption also fails. While we will liberally construe redemption statutes, we cannot construe them in such a manner as to disregard clear legislative intent. We have often stated that when the language of a statute is clear, we must simply “declare the meaning of the statute as clearly expressed.” Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. SDCL 21-49-38 clearly prohibits redemption by any party beyond the 180th day. No amount of statutory construction, no matter how liberally construed, can override that clear pronouncement.

[¶ 13.] 2. Whether the circuit court abused its discretion in failing to fashion an equitable remedy.

[¶ 14.] Sieff claims he is entitled to equitable relief. The right to redeem property previously foreclosed is purely statutory and “can be exercised only within the period and in the manner prescribed by law.” Dardanella Fin. Corp. v. Home Fed. Sav. & Loan, 392 N.W.2d 834, 835 (S.D.1986). As previously discussed, Sieff did not properly exercise his statutory right of redemption. Furthermore, “[i]t is not within the province of the courts to enlarge or restrict the statutory right of redemption.” Id. Only when there is evidence of fraud, collusion or deceit is a court allowed to extend a redemption period using its equity powers. See Tudor Engineering Co. v. Mouw, 109 Idaho 573, 709 P.2d 146, 148 (1985); Johnson v. Smith, 675 P.2d 307, 310 (Colo.1984); (Miebach v. Colasurdo, 35 Wash.App. 803, 670 P.2d 276, 286 (1983)); Haskell v. Carey, 294 Md. 550, 451 A.2d 658, 663 (1982). Sieff has not alleged any such conduct. Therefore, he is not entitled to any equitable remedy.

[¶ 15.] 3. Whether the circuit court erred by not entering findings of fact and conclusions of law.

[¶ 16.] The circuit court did not issue findings of fact and conclusions of law in disposing of this case. Sieff contends that constitutes a violation of SDCL 15-6-52(a) and is reversible error. That statute applies only to “actions tried upon the facts....” SDCL 15-6-52(a). The only testimony at the hearing pertained to the equities of the situation. Since this matter was essentially one of statutory interpretation, that testimony was irrelevant to the circuit court’s determination. This action was not “tried upon the facts” and therefore, specific findings of fact and conclusions of law were not mandated by SDCL 15-6-52(a).

[¶ 17.] Judgment affirmed.

[¶ 18.] MILLER, C.J., and SABERS, AMUNDSON, and KONENKAMP, JJ„ concur.


author: G. BARRY ANDERSON, Judge.

text:
    Marlyn BUSS, Relator, v. Suzette JOHNSON, Respondent, Blue Earth County Board of Commissioners, Respondent.
    No. C2-00-1395.
    Court of Appeals of Minnesota.
    April 3, 2001.

      William S. Partridge, Farrish Johnson Law Office, Mankato, MN, for relator.
    Suzette E. Johnson, Johnson, Anderson & Zellmer, Mankato, MN, for respondent Suzette Johnson.
    Jay T. Squires, Ratwik, Roszak & Malo-ney, P.A., Minneapolis, MN, for respondent Blue Earth County Board of Commissioners.
    Considered and decided by LANSING, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Relator Marlyn Buss challenges the Blue Earth County Board of Commissioners’ grant of a conditional use permit to respondent Suzette Johnson that allowed her to rebuild a destroyed, nonconforming horse barn. Relator argues that a county ordinance that permits the rebuilding of a destroyed nonconforming structure is invalid because it conflicts with Minn.Stat. § 394.36, subd. 1 (2000), which requires conforming use of the property following destruction of a nonconforming building. Relator further claims that, because the ordinance is invalid, the board of commissioners acted arbitrarily and unreasonably in granting the conditional use permit. Because the ordinance 'conflicts with the statute, we hold the ordinance invalid to the extent it permits restoration or repair of a nonconforming building that has been destroyed to the extent of 50% or more of its value. We further hold, however, that a reviewing authority, such as a board of commissioners, must consider the value of an entire integrated nonconforming use when determining the percentage of destruction of a nonconforming building within the meaning of Minn.Stat. § 394.36, subd. 1. Finally, because the conditional use permit in this case was a condition of a variance granting respondent relief from the restrictions of MinmStat. § 394.36, subd. 1, the board of commissioners’ grant of the permit was neither arbitrary nor unreasonable.

FACTS

Before 1983, respondent Suzette Johnson’s property, which abuts Crystal Lake in Blue Earth County, was zoned R-l, Rural Residence. Blue Earth County (“County”) categorized Crystal Lake as a “General Development” lake. On October 4, 1983, Blue Earth County rezoned the property (“Johnson Property”) to A-2 Agricultural, and the County granted respondent a conditional use permit authorizing use of the Johnson Property as a commercial stable and riding academy for up to 100 horses.

In December 1991 the County, as part of a broader land use plan, adopted a shore-land ordinance that regulated land within approximately 1,000 feet of County lakes. In January 1994 the County adopted a livestock manure management ordinance that regulated animal feedlots. On May 13, 1996, the County’s environmental-services office issued respondent a State of Minnesota Certificate of Compliance, allowing appellant to maintain barns and a feedlot for up to 65 horses. On May 14, 1996, the County issued respondent a corresponding feedlot permit. On June 8, 1996, the County adopted a general land use ordinance providing regulations and restrictions for various land use districts. At this point, the Johnson Property was a conforming use.

On February 22, 2000 the County adopted a new shoreland ordinance. Blue EaiUi County Shoreland Ordinance § 0110.0706, subps. 2(B)(1), (2) (2000) prohibited new feedlots in areas zoned as shoreland, and prohibited modifications or expansions to existing feedlots, but allowed the county board of commissioners to grant conditional use permits for feedlot modifications to mitigate existing pollution problems. The parties agree that, with the enactment of the February 22, 2000 shoreland ordinance, the Johnson Property feedlot became a permitted nonconforming use.

In April 2000, a fire destroyed one of three horse barns on the Johnson Property. Respondent submitted a timely application for a variance to reconstruct the destroyed barn. On June 7, 2000, the county board of adjustment conducted a public meeting to consider respondent’s request for a variance. The board of adjustment reviewed relevant documents, county land use staff recommendations, and heard testimony from a number of interested county residents, including relator Marlyn Buss. The board of adjustment approved respondent’s request for a variance, but made approval contingent on the issuance of a new conditional use permit authorizing reconstruction of the barn. The board of adjustment unanimously voted to recommend issuance of a conditional use permit with conditions recommended by county staff. The county planning commission voted to forward the request for a conditional use permit to the county board of commissioners.

The board of commissioners met on June 27, 2000 to consider the request for a conditional use permit. The board reviewed the recommendation of the planning commission, comments of county staff, and letters and testimony offered by Crystal Lake residents, including relator, respondent, and respondent’s neighbors. The board also heard from the county attorney. The board unanimously voted to issue the conditional use permit to respondent, allowing her to reconstruct the barn.

By writ of certiorari, relator challenges the board of commissioners’ grant of the conditional use permit.

ISSUES

I. Does Minn.Stat. § 394.36, subd. 1 (2000) conflict with Blue Earth County Ordinance 0100.1405, subp. 7E (1996)?

II. Was the Blue Earth County Board of Commissioners’ grant of a conditional use permit to rebuild a destroyed feedlot barn arbitrary and unreasonable?

III. Should documents not submitted to or considered by the Blue Earth County Board of Commissioners be stricken from the record?

ANALYSIS

I.

Relator first argues that an ordinance supporting the County’s decision to grant the conditional use permit, Blue Earth County Land Use Ordinance § 0100.1405, subp. 7E (1996), is invalid because it is in conflict with Minn.Stat. § 394.36, subd. 1 (2000). Interpretations of state statutes and existing local zoning ordinances are questions of law that this court reviews de novo. See Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985) (statutes); Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980) (ordinances).

Conflicts that would render an ordinance invalid exist only when the ordinance and the statute contain irreconcilable terms. Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 352, 143 N.W.2d 813, 816 (1966). In determining whether an ordinance conflicts with a statute, we are guided by four principles:

(a) As a general rule, conflicts which would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other.
(b) More specifically, it has been said that conflict exists where the ordinance permits what the statute forbids.
(c) Conversely, a conflict exists where the ordinance forbids what the statute expressly permits.
(d) It is generally said that no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute.

Northern States Power Co. v. City of Granite Falls, 463 N.W.2d 541, 544-45 (Minn.App.1990) (citations and quotations omitted), review denied (Minn. Jan. 14, 24, 1991).

Relator argues that the county ordinance is in conflict with state law because the ordinance allows the rebuilding of a nonconforming structure and continued nonconforming use of the property while Minn.Stat. § 394.36, subd. 1 does not.

Blue Earth County Land Use Ordinance 0100.1405, subp. 7E (1996) provides:

Subp. 7. Restoration and Repair. A non-conforming structure may be restored or repaired:
E. When damaged or destroyed as the result of disaster upon the granting of a conditional use permit as regulated in Section 18 of this Ordinance.

Minnesota law, in the form of Minn.Stat. § 394.36, subd. 1, on the other hand, provides:

Nonconformities. Subdivision 1. Continuous or it ends. Any nonconformity including the lawful use or occupation of land or premises existing at the time of the adoption of an official control hereunder may be continued, except as regulated, terminated or acquired by the [municipality planning] board as provided in subdivisions 2 or 3, although such use or occupation does not conform to the provisions thereof, but if such nonconformity or occupancy is discontinued for a period of more than one year, or any nonconforming building or structure is destroyed by fire or other peril to the extent of 50 percent of its market value, any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy.

Id.

Ordinance subpart 7E permits what Minn.Stat. § 394.36, subd. 1 prohibits; it provides that once a nonconforming structure is destroyed, it may be rebuilt — and the nonconforming use may continue— upon the granting of a conditional use permit, notwithstanding percentage of destruction. In contrast, Minn.Stat. § 394.36, subd. 1 requires that after a nonconforming building has been destroyed to the extent of 50% of its market value, subsequent use or occupancy of the land or premises shall be a conforming use. Because the ordinance permits what Minn.Stat. § 394.36, subd. 1 restricts, we hold the ordinance invalid to the extent it permits restoration or repair of a building destroyed to an extent of 50% or more of its market value.

II.

Relator next argues that the conflicts between Blue Earth County Land Use Ordinance 0100.1405, subp. 7E, Minn.Stat. § 394.36, subd. 1, and other county ordinances render the board of commissioners’ decision to grant respondent a conditional use permit arbitrary and unreasonable. The Minnesota Supreme Court has repeatedly stated:

[W]ith respect to the decisions of municipal and other governmental bodies having the duty of making decisions involving judgment and discretion that it is not the province of the court to substitute its judgment for that of the body making such a decision, but merely to determine whether that body was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination.

Village of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 815 (1962) (citations omitted). Relator’s argument requires us to interpret and apply Minn.Stat. § 394.36, subd. 1. Where facts are not disputed, application and interpretation of a statute presents us with a question of law that we review de novo. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn.2000).

A. Minn.Stat. § 394.36

Relator contends that Minn.Stat. § 394.36, subd. 1 is the controlling legislation and that the statute operates to prevent the County from granting respondent a conditional use permit to rebuild her barn. Respondent argues that the statute does not apply because the horse barn, before the fire, conformed to local zoning requirements, but the operation of the feedlot of which the barn was part was the nonconforming use. In other words, respondent draws a distinction between a nonconforming building and a nonconforming use, and contends that the barn was not a nonconforming building within the meaning of Minn.Stat. § 394.36, subd. 1.

But Blue Earth County Livestock Manure Management Ordinance 130.02, subd. 8(4) (1994) defines an animal feedlot, the nonconforming use, as “[a] lot or building, or combination of contiguous lots and buildings, intended for the confined feeding, breeding, raising, or holding of animals ⅝ * Id. Thus, the destroyed horse barn, although a building, is clearly a component of the larger nonconforming use. In addition, the record is replete with references to the horse barn as a nonconforming use and the board of commissioners treated the barn as a nonconforming building throughout the proceedings below. Accordingly, we reject respondent’s argument that the barn was a conforming building.

Respondent also argues that, even if the horse barn is a nonconforming use within the meaning of Minn.Stat. § 394.36, subd. 1, it is part of an integrated nonconforming use that was not destroyed to the extent of 50% or more of its market value. This contention requires us to interpret Minn. Stat. § 394.36, subd. 1, which provides, in relevant part:

[I]f such nonconformity or occupancy is discontinued for a period of more than one year, or any nonconforming building or structure is destroyed by fire or other peril to the extent of 50 percent of its market value, any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy.

Id.

We first consider clauses of a statute together to give words their plain meaning. American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000); see also Minn.Stat. § 645.16, 17 (2000) (words given plain and ordinary meaning). If a statute is free from ambiguity, we look only at its plain language. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). A plain reading of the language in dispute dictates that once a nonconforming building is more than 50% destroyed, the future use to which it or the associated land or premises may be put “shall” be a conforming use. See Minn.Stat. § 645.44, subd. 16 (2000) (“shall” is mandatory). The statute makes no distinction between a building that is part of a larger conforming use and a building that is coextensive with the nonconforming use.

As the facts of this case illustrate, however, literal interpretation of the statute produces an absurd or unreasonable result: a building that is part of a larger nonconforming use, once destroyed, prevents subsequent nonconforming use of the entire property, even if the building was only a small fraction of the entire use and notwithstanding a county authority’s willingness to grant a variance or a conditional use permit.

If the statute’s literal meaning leads to “an absurd result that utterly-departs from the legislature’s purpose, we may look beyond the language and examine other indicia of legislative intent.” Anker v. Little, 541 N.W.2d 333, 336 (Minn.App.1995) (citations omitted), review denied (Minn. Feb. 9, 1996); see also Minn.Stat. § 645.17 (we presume that the legislature does not intend an absurd, impossible, or unreasonable result).

The purpose of Minn.Stat. § 394.36 is to reduce, through gradual elimination, the number of nonconforming uses. Id., subd. 2. The Minnesota Supreme Court has recognized that the public policy behind the prohibition of nonconforming uses is to

increase the likelihood that such uses will in time be eliminated due to obsolescence, exhaustion, or destruction. This in turn will lead to a uniform use of the land consistent with the overall comprehensive zoning plan.

Freeborn County v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972). Minn.Stat. § 394.36, however, also recognizes the interests of property owners by providing that nonconforming uses may continue unless abandoned or destroyed to an extent of 50% of market value, and by providing for public acquisition, by board purchase, of nonconforming property. Id., subds. 1, 3. Because one legislative purpose of Minn.Stat. § 394.36 is the protection of property owner interests, and a literal interpretation of Minn.Stat. § 394.36, subd. 1 departs from those interests, we look beyond the plain language of the statute to ascertain the legislature’s intent.

In doing so, we may look to prior versions of a statute. Minn.Stat. § 645.16. A review of Minn.Stat. § 394.36, subd. 1 (1971), the predecessor to the current statute, shows that the legislature inserted “or any nonconforming building or structure is destroyed by fire or other peril to the extent of 50 percent of its market value” before the clause “any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy.” Id.; 1974 Minn. Laws ch. 571, §§ 41-43. Because we are to interpret the singular words “building or structure” to include the plural, we may conclude that the legislature intended the percentage of destruction to apply to multiple buildings constituting a nonconforming use, notwithstanding the legislature’s use of the singular words followed by the preexisting clause “subsequent use or occupancy of the land or premises ⅜ * See Minn.Stat. § 645.08(2) (2000) (generally, singular includes the plural).

Other jurisdictions have recognized that, where a statute or ordinance permits restoration after destruction of a nonconforming building to a particular percent of market value, the entire use, including the building, should be considered. See, e.g., Fayette County v. Seagraves, 245 Ga. 196, 264 S.E.2d 13, 15 (1980) (holding value of mobile home included septic tank, well pump, and utility connections); Application of Richards, 41 Misc.2d 850, 246 N.Y.S.2d 746, 749-50 (Sup.Ct.1962) (holding that, where one of seven buildings constituting a nonconforming migrant labor camp was destroyed, board of zoning appeals required to consider entire use for purposes of computing percentage of destruction); see also Kenneth H. Young, Anderson’s American Law of Zoning, § 6.62 (4th ed.1996) (explaining that a consideration of the percentage of the value of a nonconforming building should involve an assessment of the entire nonconforming use as a whole).

This court has also recognized nonconforming uses as a whole. Hertog v. Milwaukee Mut. Ins. Co., 415 N.W.2d 370 (Minn.App.1987), review denied (Minn. Jan. 20, 1988). In Hertog, an insurance-recovery action, a city ordinance regulated nonconforming uses destroyed to an extent over 75% of market value. Id. at 373-74. Hertog recognized that a floral business, the nonconforming use, constituted more than one structure for the purpose of ascertaining the percent of destruction. Id. Although HeHog did not apply Minn.Stat. § 394.36, subd. 1, we find Hertog persuasive and an aid to our interpretation of the statute.

A consideration of the market value of an entire nonconforming use comports with the legislature’s goal of gradually reducing nonconforming uses while protecting interests of property owners, and has support in both Minnesota and foreign jurisdictions. Moreover, our interpretation of Minn.Stat. § 394.36, subd. l’s language ameliorates the. absurd result that a strictly literal interpretation produces. Accordingly, we conclude that the legislature, in amending Minn.Stat. § 394.36, subd. 1, intended the percentage of destruction to be determined after a consideration of the entire market value of the nonconforming use of which a building is a part, not a consideration of the market value of the destroyed building alone. Because the board of commissioners did not determine, and the record is not clear, that the nonconforming use was destroyed to an extent of 50% or more of its market value, we are unable to determine whether Minn.Stat. § 394.36, subd. 1 applies. Resolution of this question, however, is not necessary because our holding ultimately turns on the variance power of the board of adjustment.

B. Grant of a Conditional Use Permit

Relator argues that, if Minn.Stat. § 394.36, subd. 1 applies to respondent’s nonconforming barn, the county board of commissioners acted arbitrarily and unreasonably by granting respondent a conditional use permit. Respondent, citing Appeal of Kenney, 374 N.W.2d 271 (Minn.1985), counters that municipalities may grant relief from state restrictions placed on nonconformities by the issuance of a variance.

In Kenney, a county board of adjustment denied a landowner’s request for a variance to make improvements to a nonconforming boathouse. Id. at 272-73. The district court sustained the board’s denial, ruling that the board was statutorily prohibited from granting the variance. Id. at 273. This court reversed, and that-ruling was affirmed by the Minnesota Supreme Court, which held that the county board of adjustment had statutory authority to issue a variance from “official controls in general and from nonconformities in particular.” Id. at 274. Respondent argues that in this case, the board of adjustment’s variance power to depart from “any official control, including restrictions on nonconformities” such as Minn.Stat. § 394.36, subd. 1, allowed the county board of commissioners to issue a conditional use permit as part of a variance grant.

Variances, governed by Minn.Stat. § 394.27, subd. 7 (2000), may be granted by county boards of adjustment “when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control * * Id. A board of adjustment, in its “exclusive power” to grant variances, may “impose conditions in the granting of variances to insure compliance and to protect adjacent properties and the public interest.” Id. As Kenney explains, the board of adjustment has the power to grant variances from any official control. Kenney, 374 N.W.2d at 274. An “official control” includes “legislatively defined and enacted policies * * * which control the development of a municipality or a county or any part thereof.” Minn.Stat. § 394.22, subd. 6 (2000). Minn.Stat. § 394.36, subd. 1, which regulates the rebuilding of nonconforming buildings, is clearly a statutory official control. As an official control, a board of adjustment may, within its statutory power, grant a variance from the requirements of Minn.Stat. § 394.36, subd. 1.

Were we to conclude the board of commissioners in this case acted arbitrarily or unreasonably by disregarding Minn.Stat. § 394.36, subd. 1 in granting a conditional use permit, made a condition of granting the variance by the board of adjustment, we would effectively strip the board of adjustment of its “exclusive power” to grant conditional variances. That power includes granting variances from “restrictions placed on nonconformities.” The attachment of conditions to a variance grant allows a board of adjustment to remedy or mitigate some of the potential harms of continuing a nonconforming use. See Minn.Stat. § 394.27, subd. 7 (stating purposes of imposing conditions are to “insure compliance and to protect adjacent property and the public interest”). Invalidating a board of commissioners’ grant of a variance-based conditional use permit on the basis of a contrary official control undercuts the ability of the board of adjustment to grant a variance that protects both public and private interests.

Accordingly, we hold that, given the exclusive variance power of the board of adjustment to depart from the requirements of Minn.Stat. § 394.36, subd. 1, the board of commissioners did not act arbitrarily or unreasonably by disregarding the statute’s limitations on nonconformities in reaching their decision to grant a conditional use permit. In so holding, however, we emphasize that we make no determination concerning the propriety of the variance grant in this case, which is properly on appeal to the district court.

Relator also claims that the board of commissioners acted arbitrarily by relying on Blue Earth County Land Use Ordinance 0100.1405, subp. 7E because the ordinance is inconsistent with other county ordinances. Because we have determined that Blue Earth County Land Use Ordinance 0100.1405, subp. 7E is invalid to the extent it permits repair or restoration of nonconforming buildings destroyed to an extent of 50% or more of market value, we do not address this argument.

III.

Finally, relator moves to strike several documents in the record assembled by the Blue Earth County Board of Commissioners. The “record” for judicial review must be confined to the record before the administrative body at the time it made its decision. In re License No. 000337 West Side Pawn, 587 N.W.2d 521, 523 (Minn.App.1998), review denied (Minn. Mar. 30, 1999). The record appears to contain a number of land use studies, meeting minutes, and other evidence of respondent’s land-use history that were not submitted to or considered by the board of commissioners. We therefore grant relator’s motion, but conclude that there is an adequate record to enable our review based on matters that were presented to the board.

DECISION

Blue Earth County Land Use Ordinance 0100.1405, subp. 7E (1996) is invalid to the extent that it conflicts with Minn.Stat. § 394.36, subd. 1 (2000). A determination of whether a nonconforming building or structure that is part of a larger nonconforming use has been destroyed to an extent of 50% or more within the meaning of Minn.Stat. § 394.36, subd. 1 requires a consideration of the market value of the entire nonconforming use. The county board of commissioners did not act arbitrarily or unreasonably by granting respondent a conditional use permit because the permit was a condition of a variance granting respondent relief from the restrictions that Minn.Stat. § 394.36, subd. 1 places on nonconforming uses.

Affirmed; motion granted.

      . The separate question of whether the variance was properly granted in this case is on appeal to the district court pursuant to Minn. Stat. § 394.27, subd. 9 (2000).


author: WILLIS, Judge.

text:
    Alexander J. BRAGINSKY, et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. C3-00-1096.
    Court of Appeals of Minnesota.
    April 11, 2001.

      Brad C. Eggen, Law Offices of Brad C. Eggen, Minneapolis, (for appellants).
    Owen L. Sorenson, Suzanne Wolbeck Kvas, Stringer & Rohleder, Ltd., St. Paul, (for respondent).
    Considered and decided by KLAPHAKE, Presiding Judge, AMUNDSON, and WILLIS, Judges.
   OPINION

WILLIS, Judge.

This appeal raises the question of whether the noneconomic-damage thresholds in the Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2000), apply to an uninsured-motorist action arising from an accident between an insured automobile driver and a negligent, uninsured motorcycle driver. Because we conclude that the thresholds do not apply, we reverse. We affirm the district court’s denial of a collateral-source offset, although on a different ground.

FACTS

Appellant Alexander J. Braginsky sought recovery from his uninsured-motorist (UM) insurer, respondent State Farm Mutual Automobile Insurance Company (State Farm), for damages suffered in an accident with an uninsured motorcycle driver. The accident occurred when the motorcycle collided with Braginsky’s automobile and then skidded out of control. The motorcycle driver and his passenger were dragged along the highway under Braginsky’s automobile for more than 100 feet. The motorcycle passenger died at the scene; the motorcycle driver was later convicted of gross-misdemeanor driving while under the influence of alcohol. Six weeks after the accident, Braginsky had a heart attack, which he claims was caused by the trauma of the accident.

Braginsky sued State Farm for UM benefits, alleging that he suffered emotional distress and coronary damage as a result of the accident. Liability was not at issue: The motorcycle driver was uninsured, and it is undisputed that his negligence caused the accident. In July 1999, a jury returned a special verdict finding that Braginsky was entitled to damages of $5,000 for pre-verdict pain, suffering, disability, and emotional distress; $3,900 for pre-verdict medical expenses; and $6,300 for future medical expenses. The jury also found that Braginsky sustained no permanent injury or disability as a result of the accident. In its order adopting the jury’s special verdict, the district court awarded judgment in favor of State Farm because Braginsky’s damages failed to meet any of the thresholds to recovery for noneconomic detriment imposed by Minn.Stat. § 65B.51 (2000), the tort-recovery provision of the Minnesota No-Fault Automobile Insurance Act.

Braginsky moved for amended findings of fact and conclusions of law and other posttrial relief. State Farm moved for determination of collateral sources. The district court determined that Braginsky was entitled to pre-verdict medical expenses, subject to a collateral-source offset, because these damages did not constitute noneconomic detriment. But it rejected Braginsky’s arguments that (1) the tort thresholds did not apply to his claim because a motorcycle is not a “motor vehicle” as defined by the no-fault act and (2) the thresholds do not apply to future medical expenses because such expenses do not constitute noneconomic detriment. State Farm again moved for determination of collateral sources; the district court denied the motion on the grounds that Braginsky’s out-of-pocket expenses exceeded the award and his health-care insurers had asserted subro-gation rights. The district court did not address Braginsky’s argument that State Farm’s motion for determination of collateral sources was not timely filed.

Braginsky appealed the district court’s interpretation and application of the tort thresholds. State Farm filed notice of review as to the court’s determination on the collateral-source issue.

ISSUES

1. Do the no-fault act tort thresholds apply to a plaintiffs UM action against his own insurer for an accident between his automobile and a negligent, uninsured motorcycle driver?

2. Did the district court err in denying the UM insurer’s motion for determination of collateral sources?

ANALYSIS

1. No-fault act tort thresholds

Whether the no-fault tort thresholds apply to Braginsky’s UM action against State Farm requires analysis of the Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2000). The facts here are undisputed. The district court’s application of a statute to undisputed facts is a conclusion of law and is thus fully reviewable by this court. Johnson v. State Farm Mut. Auto. Ins. Co., 574 N.W.2d 468, 470 (Minn.App.1998) (citing A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977)).

Under the no-fault act, damages for noneconomic detriment are recoverable in tort only if certain thresholds are met. These thresholds are set forth in section 65B.51, which provides:

With respect to a cause of action in negligence accruing as a result of injury arising out of the operation, ownership, maintenance or use of a motor vehicle with respect to which security has been provided as required by sections 65B.41 to 65B.71, the court shall deduct from any recovery the value of basic or optional economic loss benefits paid or payable ⅜ ⅜ *.

In an action described in subdivision 1, no person shall recover damages for noneconomic detriment unless:

(a) The sum of [medical expenses] exceeds $4,000 * * *; or
(b) the injury results in
(1) permanent disfigurement;
(2) permanent injury;
(3) death; or
(4) disability for 60 days or more.

Minn.Stat. § 65B.51, subds. 1, 3. The tort thresholds implement two of the fundamental purposes of the no-fault act: to “prevent the overcompensation of those automobile accident victims suffering minor injuries by restricting the right to recover general damages to cases of serious injury” and to “ease the burden of litigation on the courts of this state.” Minn.Stat. § 65B.42, subds. 2, 4. As a trade-off for guaranteed payment, regardless of fault, of specified economic losses for automobile-related injuries, the tort thresholds limit access to the courts to all but those accident victims who are so severely injured that their recovery under the no-fault act would be “so inadequate as to be unjust.” Coughlin v. LaBounty, 354 N.W.2d 48, 52 (Minn.App.1984), review denied (Minn. Jan. 9, 1985).

The tort thresholds apply only to a “cause of action in negligence” accruing “as a result of injury arising out of the operation, ownership, maintenance or use of a motor vehicle,” with respect to which “security has been provided as required by [the no-fault act].” Minn.Stat. § 65B.51, subd. 1. The first condition, that the cause of action be in negligence, refers to “both a negligence action and the contract action arising from the same operative facts that is conditioned on the negligence.” Johnson, 574 N.W.2d at 471. Here, Bragin-sky’s contract action against his insurer arises from the motorcycle driver’s negligence.

State Farm argues that because Braginsky’s claim is against his UM insurer and not the uninsured driver, the tort thresholds should apply. Because the thresholds apply only to injuries arising out of the operation, ownership, maintenance, or use of a motor vehicle “with respect to which security has been provided as required by [the no-fault act],” uninsured motorists are not entitled to the limited tort immunity that the thresholds provide. Minn.Stat. § 65B.51, subd. 1; see also Theodore J. Smetak et al., Minnesota Motor Vehicle Insurance Manual 225 (3rd ed.2000) (noting that uninsured tortfeasors are not entitled to the protection of the thresholds); 2 Michael K. Steenson, Minnesota No-Fault Automobile Insurance 282 (2nd ed.1999) (noting that “[t]he quid pro quo for procuring the insurance required by the no-fault act is the limited tort immunity provided by the tort thresholds”). Braginsky’s damages arise out of an accident with an uninsured driver, but he seeks recovery from his UM insurer. UM coverage is purchased

to protect against the risk that the motorist who injures the purchaser is uninsured ⅜ ⅜ * and unable to pay the damages the purchaser is entitled to recover under tort law.

McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 479 (Minn.1992). The accident victim, in other words, collects under his or her own UM policy the compensation that the defendant’s liability carrier would have paid if the defendant had been insured. Id. Because the insured accident victim must meet the thresholds when suing an insured defendant, and because the insured’s UM insurer takes the place of the absent liability insurer, “it is logical that the insured must also meet one of the thresholds when suing the UM insurer.” Johnson, 574 N.W.2d at 471-72.

But Braginsky argues that the thresholds do not apply here because a motorcycle is not a “motor vehicle” as defined by the no-fault act, and thus his cause of action did not accrue “as a result of injury arising out of the operation, ownership, maintenance, or use of a motor vehicle.” The no-fault act defines “motor vehicle” as “every vehicle, other than a motorcycle or other vehicle with fewer than four wheels.” Minn.Stat. § 65B.43, subd. 2. The supreme court has found this definition to be unambiguous:

The Legislature precisely defined “motor vehicle” in section 65B.43, subd. 2, and expressly excluded motorcycle from that definition. The statutory definition applies throughout the no-fault act unless the “context clearly indicates a different meaning.”

Feick v. State Farm Mut. Auto. Ins. Co., 307 N.W.2d 772, 774 (Minn.1981) (quoting Minn.Stat. § 65B.43, subd. 1 (1980) (stating that words and phrases defined in section 65B.43 shall “have the meanings ascribed to them, except where the context clearly indicates a different meaning”)). In Feick, the supreme court held that a bicyclist who was injured in a collision with an insured motorcycle driver was not entitled to basic-economic-loss benefits. Id. at 775. The bicyclist, who settled for the full amount of the policy limits of the motorcycle driver’s liability insurance, then sought to recover basic-economic-loss benefits against policies covering his father’s automobiles. Id. at 773. The no-fault act provides that in an accident causing an injury, basic-economic-loss benefits are available to “every person suffering loss from injury arising out of maintenance or use of a motor vehicle.” Minn.Stat. § 65B.46, subd. 1. The court concluded that because basic-economic-loss benefits are available only for injuries arising out of the maintenance or use of a motor vehicle, and because the statutory definition of motor vehicle excludes motorcycles, the bicyclist was not entitled to recover basic-economic-loss benefits against his father’s automobile insurer. Feick, 307 N.W.2d at 774-75. The court also noted that a negligence claim against the motorcycle driver would similarly “not [be] subject to the [n]o-[f|auIt threshold requirements of section 65B.51, subd. 3.” Id. at 775 n. 8.

State Farm argues that the term “motor vehicle” is ambiguous because the general definitional section of the no-fault act, Minn.Stat. § 65B.43, also contains a definition of “uninsured motor vehicle” that includes motorcycles, and thus that we should interpret the term motor vehicle, as used in section 65B.51, to include motorcycles. Under the no-fault act, UM insurers are required to provide

coverage for the protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles and hit- and-run motor vehicles.

Minn.Stat. § 65B.43, subd. 18 (emphasis added). “Uninsured motor vehicle” is defined as “a motor vehicle or motorcycle for which a plan of reparation or security [as required by the no-fault act] is not in effect.” Id., subd. 16 (emphasis added). Together, subdivisions 16 and 18 of section 65B.43 allow an insured who is injured by an uninsured motorcyclist to collect UM benefits. After the Feick decision, the legislature moved the definition of “uninsured motor vehicle,” which includes motorcycles, into the no-fault act’s general definitional section; this section also contains the definition of “motor vehicle,” which excludes motorcycles. The supreme court has noted that, because of the juxtaposition of these definitions, “the term ‘motor vehicle’ is not unequivocally explained by Minn.Stat. § 65B.43, subd. 2.” Hanson v. American Family Mut. Ins. Co., 417 N.W.2d 94, 95 (Minn.1987). In Hanson, the supreme court determined that the no-fault act did not allow an insured to “extend [UM] coverage from an automobile to an owned but uninsured motorcycle.” Id. at 96. The motorcycle driver in Hanson argued that section 65B.49, subdivision 3a(7), which reflects “a broad policy decision to tie [UM] and other coverage to the particular vehicle involved in an accident” rather than to the person, did not apply to motorcycles because that section provides:

The uninsured and underinsured motorist coverages required by this section do not apply to bodily injury of the insured while occupying a motor vehicle owned by the insured, unless the occupied vehicle is an insured motor vehicle.

Id. at 95 (quoting 65B.49, subd. 3a(7) (1986)) (emphasis added). The supreme court concluded that, despite the use of the term “motor vehicle” in this provision, the “more inclusive definition of ‘uninsured motor vehicle’ ” should apply because if the legislature had intended to exclude motorcycles from the “broad policy decision” of tying UM and underinsured motorist benefits to the vehicle, it would have “clearly expressed” that intention. Id. at 95-96.

Unlike section 65B.49, subdivision 3a(7), the provision at issue here, section 65B.51, subdivision 3, makes no reference to UM coverage. Further, when the legislature moved the definition of uninsured motor vehicle into the general definitions section of the no-fault act in 1985, it chose not to amend the thresholds section, despite the statement in Feick four years earlier that a negligence claim against an insured motorcyclist would not be subject to the thresholds. And unlike Hanson, where broad policy considerations weighed against applying the definition of motor vehicle that excluded motorcycles, here they weigh in favor of its application. As we note above, the quid pro quo for procuring the insurance required by the no-fault act is the limited tort immunity provided by the thresholds. But, while every owner of a motorcycle is obligated to provide liability insurance, motorcycle owners need not provide basic-economic-loss, UM, or underinsured-motorist benefits. See Minn.Stat. § 65B.48, subd. 5; Smetak et al., supra, at 404. And, as this court has noted, by excluding motorcycles from the definition of motor vehicle in the no-fault act, “the legislature retained the fault based character of liability for damages caused by motorcycle use.” Pavel v. Norseman Motorcycle Club, Inc., 362 N.W.2d 5, 7 (Minn.App.1985). Affording motorcycle drivers the protection of the thresholds would frustrate the legislative goal of retaining a fault-based system of tort recovery for injuries caused by motorcycles.

The context here does not “clearly indicate a different meaning” for the term motor vehicle other than that provided in section 65B.43, subdivision 2. See Minn. Stat. § 65B.43, subd. 1. Thus we conclude that a negligent motorcycle driver, whether insured or not, is not entitled to the limited protection afforded by the no-fault act tort thresholds. In Johnson, we reasoned that because an accident victim must meet the thresholds when suing an insured motorist, and, because the victim’s UM insurer takes the place of an uninsured motorist’s absent liability insurer, the victim must meet one of the tort thresholds to recover from the UM insurer. Johnson, 574 N.W.2d at 471-72. Because an accident victim would not be required to meet the no-fault act tort thresholds to recover from a negligent, insured motorcycle driver, he or she is not required to do so to recover from his or her own UM insurer for damages caused by a negligent, uninsured motorcycle driver.

The district court erred in determining that the thresholds apply to Braginsky’s claim against his UM insurer for an accident between his automobile and a negligent, uninsured motorcycle driver. Bra-ginsky is entitled to the damages awarded by the jury, which the district court determined to be excluded by the thresholds. Therefore we reverse and remand for entry of judgment in favor of Braginsky, including $5,000 for pre-verdict pain, suffering, disability, and emotional distress, and $6,300 for future medical expenses. Because we determine that the no-fault act tort thresholds do not apply here, we need not reach the question as to whether future medical expenses are “noneconomic detriments,” to which those thresholds, apply-

2. Collateral sources

State Farm sought a collateral-source offset. The district court determined that State Farm was not entitled to an offset because Braginsky’s out-of-pocket expenses exceeded the jury award and because his health insurers asserted their subrogation rights. By notice of review, State Farm challenges this determination.

Health-insurance payments are collateral sources under Minn.Stat. § 548.36, subd. 1(2) (2000). A party may file a motion for determination of collateral sources “within ten days of the date of entry of the verdict.” Id., subd. 2 (2000). When, as here, a special verdict is returned, “entry of judgment must be pursuant to an order of the district court.” Northwestern State Bank v. Foss, 287 Minn. 508, 511, 177 N.W.2d 292, 294 (1970). The filing of a district court’s order for judgment pursuant to a jury’s special verdict triggers the time to file a motion for determination of collateral sources. Construing “entry of the verdict” to mean filing of the district court’s order for judgment is consistent with the timing mechanism for posttrial motions under Minn. R. Civ. P. 59.03. Thus, if a party chooses to file a motion for determination of collateral sources pursuant to section 548.36, it must do so within ten days after the filing of the district court’s order for judgment. Any other construction would render the statutory ten-day period meaningless.

Here, the district court filed an order for judgment on July 21, 1999, adopting the jury’s special verdict. Twenty days later, State Farm filed a motion for determination of collateral sources. On November 2,1999, the district court filed an order granting Braginsky judgment in the amount of $3,900, subject to a collateral-source offset. Seventeen days later, State Farm again filed a motion for determination of collateral sources. Braginsky argued that State Farm was not entitled to an offset because (1) its motion was not timely filed, (2) Braginsky’s out-of-pocket expenses exceeded the jury award, and (3) Braginsky’s health-care insurers had asserted subrogation rights. The district court, in ruling on the collateral-source issue, did not address the timeliness of State Farm’s motions, but it denied an offset on the other grounds asserted by Braginsky.

Because State Farm’s motions were not timely filed, we conclude that the district court erred in considering them. But we affirm the district court’s denial of an offset.

DECISION

The no-fault act tort thresholds do not apply to Braginsky’s UM action for non-economic damages arising out of his accident with a negligent, uninsured motorcycle driver; because State Farm’s motions for determination of collateral sources were not timely filed, the district court erred in considering those motions.

Affirmed in part, reversed in part, and remanded.

      . Braginsky also argues that his claim is supported by Minn.Stat. § 65B.51, subd. 5, which provides:
      Nothing in this section shall impair or limit tort liability or limit the damages recoverable from any person for negligent acts or omissions other than those committed in the operation, ownership, maintenance, or use of a motor vehicle.
      We find this argument unconvincing. The purpose of this provision is to exclude defendants such as dramshops from the protection afforded by the thresholds. See 2 Steenson, supra, at 282 (noting that pursuant to subdivision 5, the tort thresholds do not apply “in cases involving civil damage act claims against a dramshop because the dramshop's liability arises out of the illegal sale of intoxicating liquor, not the maintenance or use of a motor vehicle”).

      . Pursuant to Minn.Stat. § 65B.48, subd. 5, motorcycle owners are required to provide liability insurance covering bodily injury and property damage. Motorcycle owners are not required to provide basic-economic-loss benefits, which cover losses including medical expenses, disability and income loss, funeral and burial expenses, replacement service and loss, survivors’ economic loss, and survivors' replacement services loss. Minn.Stat. § 65B.44.

      . We note that in Wertish v. Salvhus, the Minnesota Supreme Court overruled an opinion of this court in which we stated that the ten-day time limit in Minn.Stat. § 548.36 also applied to motions for determination of collateral sources brought pursuant to Minn. Stat. § 65B.51, which provides no time limitation. Wertish v. Salvhus, 558 N.W.2d 258, 258 (1997) (mem.). Because the supreme court determined that the ten-day time limit had, in any event, been met, it declined to reach the issue of whether a motion brought pursuant to Minn.Stat. § 65B.51 was subject to the ten-day limit. Id. Here, State Farm’s first motion for determination of collateral sources did not refer to any specific statutory provision, but its second motion and arguments on appeal were based on Minn.Stat. § 548.36. Therefore we construe its motions to have been brought pursuant to that section.