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Lawyers get around Minnesota's seatbelt 'gag rule'

Minnesota Lawyer
May 2008

Minneapolis attorneys James Schwebel and Bob Schmitz recently settled a personal injury lawsuit involving the misuse of a seatbelt for $3 million.

The case involved a family that lives in Mondovi, Wis., who was traveling in Minnesota. The father had buckled his four children into the back seat of a Ford F150 pick-up truck provided by his employer, BASF Corporation. Lacking one seating position, the father chose to secure his 6- and 7-year-old sons together in the rear center seating position.

South of Lake City, Minn., the pickup was struck head-on by a vehicle that had come over the centerline. The two boys sharing a seatbelt were seriously injured in the crash, with one ending up paralyzed.

Schwebel and Schmitz represented the children in a lawsuit against their father, alleging negligence in misusing the seatbelt. Schwebel said they sued the case out in Eau Claire County, Wis., rather than Minnesota, because Minn. Stat. 169.685, subd. 4, prohibits submission into evidence the fact of compliance or noncompliance with the state’s seat belt statute. The Wisconsin statute, 347.48(4), allows for the admission of such evidence, but restricts the plaintiff’s cause of action by stating “failure to [transport a child unless the child is restrained] and [to properly restrain children under the age of 8] does not by itself constitute negligence.”

Schwebel acknowledged that a significant obstacle in the case was the fact that a Wisconsin judge could have chosen to apply Minnesota law. “It was one of the minefields the plaintiffs faced,” he said, adding that the case settled, however, prior to the defendant’s summary judgment motion on the issue.

BASF’s insurer, Zurich Insurance Company, paid $2,725,000 to settle the case of the paralyzed child (using a structured settlement providing a projected lifetime yield of $18.8 million), and $275,000 for the other injured child, who has since recovered without any permanent disabilities. (An additional $300,000 of liability insurance coverage on the at-fault vehicle was allocated to settle the injury claim of  the front seat passenger.)
Schwebel noted that the lawsuit, brought by minor children against their father for failure to properly restrain them in a motor vehicle, was a case of first impression in Wisconsin.