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Schaefer v. Sioux Spine and Sport, Prof. LLC

Supreme Court of South Dakota

January 10, 2018

KATHY A. SCHAEFER, Plaintiff and Appellant,
v.
SIOUX SPINE AND SPORT, PROF. LLC, Defendant, and NATHAN J. FLANDERS, Defendant, Third-Party Plaintiff, and Appellee,
v.
HERBERT TOLLEFSON, Third-Party Defendant and Appellee.

          ARGUED NOVEMBER 8, 2017

         Appeal From The Circuit Court of The Second Judicial Circuit Minnehaha County, South Dakota The Honorable John Pekas Judge

          JAMI J. BISHOP, RONALD A. PARSONS, JR., A. RUSSELL JANKLOW, SARA E. SHOW of Johnson Janklow & Abdallah, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

          MELANIE L. CARPENTER of Woods, Fuller, Shultz & Smith, PC Sioux Falls, South Dakota Attorneys for defendant, third party plaintiff, and appellee Nathan Flanders.

          HEIDI N. THOENNES of American Family Insurance Legal Department West Des Moines, IA Attorney for third party defendant and appellee Herbert Tollefson.

          GILBERTSON, Chief Justice

         [¶1.] Kathy A. Schaefer filed an action against Nathan J. Flanders alleging negligence. The circuit court granted summary judgment in favor of Flanders on the basis of a release signed by Schaefer. Schaefer argues there are genuine issues of material fact as to whether her consent to the release was based on mistake and obtained by undue influence. She also argues there is a genuine issue of material fact as to whether the injury forming the basis for this negligence action was known at the time she signed the release. We reverse.

         Facts and Procedural History

         [¶2.] On June 9, 2013, 55-year-old Kathy Schaefer was a passenger in the front seat of a vehicle driven by her boyfriend, Herbert Tollefson. Tollefson attempted to turn left onto 85th Street in Sioux Falls. However, rather than using the left-turn lane, Tollefson stopped in a through-traffic lane. Tollefson's vehicle was struck from behind by a vehicle operated by Nathan Flanders. Flanders claimed that he looked down at his speedometer while accelerating and that when he looked up again, Tollefson's vehicle was stopped in front of him. Law enforcement cited Tollefson for unsafe lane usage and Flanders for careless driving. Flanders ultimately pleaded guilty to following Tollefson's vehicle too closely.

         [¶3.] At the accident scene, Schaefer complained of pain in her neck and back. Schaefer was transported by ambulance to Avera McKennan Hospital where she complained of pain in her neck and ribs. She denied having a "headache, midsternal chest pain, nausea, vomiting, fever, chills, abdominal pain, back pain or extremity pains." The treating physician ordered an x-ray, which did not reveal any injury. Schaefer was diagnosed with an "acute cervical sprain" and a "mild chest wall contusion." The physician prescribed medication for Schaefer's pain, and she returned home. Schaefer believed that her care providers did not find any evidence of injury on her chest x-ray. Following her discharge, Schaefer did not experience chest pain.

         [¶4.] Two days after the collision, Dustin Parris, a claims adjuster for Flanders's automobile-insurance provider, Farmers Insurance Group, contacted Schaefer. Parris's notes from that conversation indicate Schaefer suffered from neck and back pain and "[c]hest pain from seatbelt." Schaefer and Parris met two weeks later, on June 25. According to Parris, Schaefer reported she was "still having pain in the neck and upper [trapezius] on both sides." But Parris's notes did not indicate that Schaefer described any chest pain. The two discussed a potential settlement, and Parris asked Schaefer for a demand. According to Parris, Schaefer, who had been receiving Social Security Disability Insurance (SSDI) benefits for an intellectual disability since before the collision, "had no idea as she has had no prior claims knowledge." Parris offered Schaefer $500 for "[g]enerals and [f]uture meds" and up to $3, 000 for her initial treatment costs.

         [¶5.] In exchange for $500 and reimbursement of up to $3, 000 in medical bills, Farmers Insurance wanted Schaefer to sign a release. Under the release, Schaefer would

forever release, acquit and discharge Nate Flanders, Melinda Flanders, Alexandria Flanders, James Flanders, Abigail Flanders, Herbert Tollefson, American Family Mutual Insurance Company, and his/her/their agents, successors, heirs, executors, administrators, and assigns, from any and all claims, causes of action, actions, rights, demands, bodily injuries, personal injuries, damages including but not limited to any and all medical expenses wherever incurred and loss of wages and/or income, loss of consortium, loss of any services, other costs and expenses, and any other compensation of any kind, which the undersigned has incurred on account of or which are in any way related to an accident that occurred on or about June 9, 2013, at or near Souix [sic] Falls, SD.

         Without consulting an attorney (or anyone else), Schaefer agreed to sign the release. At the time Schaefer signed the release, she had already received bills from Avera totaling more than $5, 000. After learning the amount of Schaefer's existing medical expenses, Farmers Insurance increased the allowance from $3, 000 to $8, 000. Parris called Schaefer on June 28 to discuss signing a new release, and the two agreed to meet on July 1.

         [¶6.] After signing the second release, Schaefer sought chiropractic treatment for her neck pain from Dr. Wade T. Scheurenbrand at Sioux Spine & Sport in Sioux Falls. On July 10, during her second treatment, Dr. Scheurenbrand performed a chest compression on Schaefer, who experienced a sharp, severe pain in her right shoulder and neck. Schaefer's pain did not subside, and on July 18, she returned to the emergency room by ambulance. Schaefer told emergency-room staff that the pain radiated up to her neck and down her arm into the chest wall. She rated her pain as 10 out of 10. Schaefer's treating physician ordered a CT scan of her neck and chest, which revealed a nondisplaced sternal fracture and body fracture with ...


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