Tip: Statutory and Negligence Claims
Claimants whose rights are violated due to a failure to comply with a statutory directive often are entitled to pursue a claim under the statute.  The claim may arise because the statute includes an express provision for civil liability or, in some instances, there may be an implied cause of action even in the absence of explicit statutory command.  In addition to making a claim of statutory violation, claimants may wish to assert a parallel claim for common law negligence.  A negligence claim may allow for broader damages.  It also may overcome some statutory defenses, including limitation periods, since six years is allowed for bringing a negligence action.  But pursuing a common law claim has some drawbacks, too.  A negligence claim relating to a statutory violation may convert the claim into one of professional malpractice, necessitating expert witness participation when the suit is commenced and within the ensuing 180-day period, under Minn. Stat. §145.682.  The statutory claim may be easier to prove, because establishing a statutory violation generally is a matter of strict liability without necessity to prove fault; see, e.g., the dog bite statute, Minn. Stat. §347.22.  Whatever the circumstances, deciding whether to assert a negligence claim, in addition to a claimed statutory violation, requires balancing legal, economic, and practical considerations. 
Marshall H. Tanick
Mansfield Tanick & Cohen, PA
Minneapolis
mtanick@mansfieldtanick.com

 

Tip: Tax on Photocopies
Many law firms charge clients for the cost of photocopies as a separately stated expense.  This practice can lead to liability for sales and use tax.

Any retail sale is subject to sales tax, unless it fits within a specific exemption.  Minn. Stat. §297A.61. There is a distinction made between producing a document as part of a service, and providing extra copies of that document as a benefit to a client, but sales of copies are generally taxable.

Minn. Rev. Notice 98-23 (Dec. 14, 1998) discusses the application of the sales and use tax to copies.  When a law firm copies documents for discovery purposes and invoices the cost of copying to other parties, the law firm must collect sales tax.  If the law firm does not collect sales tax, then the recipient of the copies is required to pay use tax.  On the other hand, there is no taxable sale when a law firm charges clients for the cost of photocopies held within the firm’s files. 

A law firm can provide clients with electronic copies of documents and can charge for the cost of scanning documents without the transaction constituting a taxable sale.  The Department of Revenue has opined that so long as the scanning of the document does not result in the production of any tangible personal property (i.e., paper), no taxable sale occurs.  Minn. Rev. Notice 02-15 (Sept. 9, 2002). 
J. Patrick Plunkett
Moore, Costello & Hart, PLLP
St. Paul
jpp@mch-pllp.com

 

Trap: Contacting Unrepresented Insured
Plaintiff attorneys must use caution when contacting directly an unrepresented insured.  Rule 4.3 of the Minnesota Rules of Professional Conduct governs the contact.  Plaintiff attorneys should not use wishy-washy terms such as telling the unrepresented person that the relationship “may be” adverse.  The relationship is clearly adverse, and any communication must make that clear.  Plaintiff attorneys must avoid giving any legal advice to the adverse, unrepresented insured.  Whatever points the attorney wants to make should not be couched as advice.  Some form letters now in circulation need revision in order to comply with Rule 4.3.
Stephen C. Rathke
Lommen Abdo Cole King Stageberg PA
Minneapolis
steve@lommen.com

 

Trap: Accident Reports
Although the authors of motor vehicle accident reports, such as investigating officers, can testify as to the information they gathered to make the report, the reports themselves are confidential and cannot be entered into evidence.  Minn. Stat. 169.09, Subd. 13(5)(b)(“Accident reports and data contained in the reports shall not be discoverable under any provision of law or rule of court. No report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the commissioner of public safety shall furnish upon the demand of any person who has, or claims to have, made a report, or, upon demand of any court, a certificate showing that a specified accident report has or has not been made to the commissioner solely to prove compliance or failure to comply with the requirements that the report be made to the commissioner.”).
Mike Ford
Quinlivan & Hughes
St Cloud
mford@quinlivan.com