Evelyn Theodora Wertish, Appellant, vs. Daniel Andrew Salvhus, Respondent.

Evelyn Theodora Wertish, Appellant, vs. Daniel Andrew Salvhus, Respondent. C6-96-955, Supreme Court, January 30, 1997

STATE OF MINNESOTA

IN SUPREME COURT

C6-96-955

Evelyn Theodora Wertish,

Appellant,

vs.

Daniel Andrew Salvhus,

Respondent.

O R D E R

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of Daniel Andrew Salvhus for further review of the decision of the court of appeals filed November 5, 1996 be, and the same is, granted for the limited purpose of clarifying that Minn. Stat. § 65B.51, subd. 1 requires that economic loss benefits offset any tort recovery to avoid the possibility of double recovery. Richards v. Milwaukee Insurance Co., 518 N.W.2d 26 (Minn. 1994), rehearing denied (Minn, Aug. 18, 1994). While the general provisions of Minn. Stat. § 548.36 suggest the filing of a motion requesting a determination of collateral sources within 10 days of the date of entry of the verdict, the statute more specific to this problem, Minn. Stat. § 65B.51, subd. 1, is silent as to any time limitation, but mandates the offset.

In either event, the motion [1] here was timely served--the trial court's order directing the entry of judgment was filed on January 4, 1996; the 10-day period defined by Minn. Stat. § 548.36 expired on Sunday, January 14, 1996 and by operation of Minn. R. Civ. P. 6.01, performance of the act the following day, Monday, January 15, 1996 would be timely but for the fact that that day was a legal holiday, Martin Luther King, Jr. Day. The defendant's motion was served on January 15, 1996 and received by the trial court on January 16, 1996 and was timely. The decision of the court of appeals in this regard is reversed and the matter is remanded to the trial court with instructions that it reinstate the judgment reflecting the offset of $20,000 representing basic economic loss benefits received by plaintiff.

Dated: January 21, 1997

BY THE COURT:

A.M. Keith
Chief Justice

Footnotes

[1] Defendant filed alternative post-trial motions, including a motion for amended findings requesting an offset of collateral source, a motion sufficient to preserve the request for a determination of collateral sources. The preferred practice is to file a more specific motion pursuant to Minn. Stat. § 65B.51, subd. 1 or Minn. Stat. § 548.36.