The jury comes back. The client hears a number. Somewhere in the next ten days, a motion gets filed that will change that number, and it will be decided entirely on paper, with no testimony, no argument to a jury, and no opportunity to build a record that was not built months earlier.
That is Minn. Stat. § 548.251, and it is the least-explained proceeding in Minnesota injury practice. Clients almost never hear about it before trial. Lawyers who have not tried a case to verdict recently sometimes discover the ten-day clock after it has run.
We have written separately about the arithmetic of collateral sources — how the reduction interacts with comparative fault and settlement credits, and why the statutory order of operations is worth real money. That analysis is at Minnesota reduces a verdict three times, in a fixed order. This article is about the procedure: when the motion exists at all, what has to be filed, who has to prove what, and the four places where the statute’s silence does more work than its text.
Does § 548.251 apply to a settlement?
No. Read the opening words of subdivision 2:
In a civil action, whether based on contract or tort, when liability is admitted or is determined by the trier of fact, and when damages include an award to compensate the plaintiff for losses available to the date of the verdict by collateral sources, a party may file a motion within ten days of the date of entry of the verdict requesting determination of collateral sources.
Everything in that sentence is a condition. There has to be an award. There has to be a verdict — the ten-day clock runs from “the date of entry of the verdict,” and there is no such date in a settled case. There has to be liability admitted or found. And the award has to include compensation “for losses available to the date of the verdict by collateral sources.”
The practical consequence is one most clients get exactly backwards. In a settlement, no court reduces anything for what an insurer already paid. What actually happens in a settlement is that the plan, the comp carrier, or the public program comes after the recovery through its own subrogation or reimbursement right — a completely different body of law, governed for health plans by Minn. Stat. § 62A.095 and, for self-funded plans, by contract and ERISA. That is the subject of what a Minnesota health plan can take from your settlement.
So: § 548.251 is a trial statute. If the case does not go to verdict, it never runs.
What stops being a collateral source, and when?
Subdivision 1 opens with a temporal boundary that most summaries drop:
For purposes of this section, “collateral sources” means payments related to the injury or disability in question made to the plaintiff, or on the plaintiff’s behalf up to the date of the verdict, by or pursuant to:
Payments made after the verdict are outside the definition. So are payments that may be made in the future. The statute is a look-back at money already spent, not a discount for coverage the plaintiff is expected to have.
Subdivision 5 confirms it from the other direction: “The jury shall not be informed of the existence of collateral sources or any future benefits which may or may not be payable to the plaintiff.” Future benefits are not hidden from the jury so a judge can deduct them later. They are simply not part of this calculation.
That matters in exactly the cases where it matters most. A plaintiff with a lifetime of future medical care, who happens to be insured, does not have the future-care award discounted under § 548.251 because a health plan might pay some of it. Whether any other doctrine reaches that question is not something this statute answers.
The four categories themselves — public disability and workers’ compensation programs, health and auto insurance providing health or income-disability benefits, group contracts to pay or reimburse health care costs, and wage-continuation plans — carry their exclusions inside them, and we itemize those in the companion article. Two are worth restating because they are absolute on the face of the text: category (2) excludes “life insurance benefits available to the plaintiff, whether purchased by the plaintiff or provided by others, payments made pursuant to the United States Social Security Act, or pension payments,” and category (4) excludes “benefits received from a private disability insurance policy where the premiums were wholly paid for by the plaintiff.”
Who has to prove what?
The statute does not say, and that is not an oversight a lawyer can afford to ignore.
Subdivision 2 provides that if the motion is filed, “the parties shall submit written evidence of, and the court shall determine” the clause (1) and clause (2) amounts. It assigns the obligation to “the parties” jointly. It does not name a movant’s burden, a burden of persuasion, or a standard of proof.
Practically, the incentives sort themselves out. Clause (1) — collateral payments — is the defendant’s reduction, and no defendant leaves it to the plaintiff to document. Clause (2) — the premium offset — is the plaintiff’s money, and no defendant will document it either. If the plaintiff files nothing on clause (2), the court has nothing from which to make the clause (2) determination, and the offset does not happen.
Two procedural features follow.
The evidence is written. The subdivision says “written evidence,” and nothing in the section contemplates a hearing with live witnesses. What arrives in front of the judge is affidavits, benefit ledgers, explanation-of-benefits records, plan documents, subrogation correspondence, and premium statements. Whatever was not obtained in discovery has to be obtained in a week and a half.
There is a second bite, but only at the court’s initiative. Subdivision 3(b): “If the court cannot determine the amounts specified in paragraph (a) from the written evidence submitted, the court may within ten days request additional written evidence or schedule a conference with the parties to obtain further evidence.” Note the shape of that sentence. It is discretionary (“may”), it belongs to the court, and it is triggered by the court’s inability to determine the amounts — not by a party’s wish to supplement. Nobody should plan around it.
And the fuse is a plain calendar count. Section 548.251 specifies no method of computing time, so Minn. R. Civ. P. 6.01(a) supplies one: exclude the triggering day, “count every day, including intermediate Saturdays, Sundays, and legal holidays,” and if the last day is a Saturday, Sunday, or legal holiday the period runs to the end of the next day that is not. Rule 6.01(a)(2) permits weekends and holidays to be excluded only for periods shorter than seven days, and only where a rule or statute expressly so provides; ten days is not such a period. Under Rule 6.01(b), for electronic filing the last day ends at 11:59 p.m. local Minnesota time.
What does the premium offset actually cover?
More than most practitioners claim, and — since August 1, 2024 — more than it used to. Clause (2) directs the court to determine:
amounts that have been paid, contributed, or forfeited by, or on behalf of, the plaintiff or members of the plaintiff’s immediate family for the two-year period immediately before the accrual of the action and until judgment is entered to secure the right to a collateral source benefit that the plaintiff is receiving as a result of losses.
Four things in that clause repay attention.
“Paid, contributed, or forfeited.” Three verbs, not one. Employee payroll contributions to a plan are inside it. So is something “forfeited” — a word the statute does not define, and which on its face reaches value given up, not only cash written out.
“By, or on behalf of, the plaintiff or members of the plaintiff’s immediate family.” A spouse’s payroll deduction for family coverage is squarely inside the clause. “Immediate family” is not defined in the section.
The window runs from accrual, not from the verdict — and it now has two parts. Laws 2024, ch. 123, art. 15, § 13 added the words “and until judgment is entered.” The offset now covers the two years immediately before the action accrued plus the entire pendency of the case through entry of judgment. In a case that took four years to try, that is a materially larger number than the pre-amendment clause produced. The session law’s effective-date clause reads: “This section is effective August 1, 2024, and applies to causes of action commenced on or after that date.”
That clause keys to commencement, not to the trial date. A case commenced in July 2024 and tried in 2027 gets the old, narrower window. A case commenced in September 2024 gets the new one. Both versions of this statute are being applied in Minnesota courtrooms right now, and which one governs is a question about the summons, not the calendar.
“A collateral source benefit that the plaintiff is receiving.” The clause is written in the present tense and ties the offset to a benefit the plaintiff is actually receiving as a result of losses. Premiums paid to secure coverage that produced no benefit are not obviously inside it.
The evidentiary problem is that nobody keeps these records in a form a court can use. Two years of pre-accrual premium history plus every payroll deduction through judgment, for the plaintiff and for immediate family members, sourced to documents — that is a discovery project, and it is one of the very few things in a trial file that has to be assembled by the plaintiff for the plaintiff’s own benefit.
Why does the subrogation exception decide who keeps the money?
Because clause (1) excludes it. The court determines amounts paid or otherwise available to the plaintiff “except those for which a subrogation right has been asserted.”
The consequence is binary:
| Subrogation right asserted | No subrogation right asserted | |
|---|---|---|
| Effect on the verdict | Not deducted | Deducted from the gross verdict |
| Who ends up with the money | The payor, out of the plaintiff’s recovery | The defendant keeps it, less its own fault share |
| Plaintiff’s net | Reduced by what the payor collects, subject to § 62A.095 and fee-sharing | Reduced by the full deduction |
Everything therefore turns on whether a payor “asserted” a subrogation right. The statute does not define “asserted,” does not say to whom the assertion must be made, and sets no deadline for it. Those are not academic gaps — they are the questions that get litigated in the ten days after the verdict, and they are answered by case law rather than by the section.
Subdivision 4 then adds a rule that changes the economics for an unrepresented payor: “Any subrogated provider of a collateral source not separately represented by counsel shall pay the same percentage of attorney fees as paid by the plaintiff and shall pay its proportionate share of the costs.” A health plan that asserts its right and stays out of the case does not collect its gross number.
The ERISA overlay. The Revisor publishes a bracketed “[See Note.]” after subdivision 1, and the note states that subdivision 1, clause (3) — formerly § 548.36, subd. 1(3) — “was found preempted by the federal Employee Retirement Income Security Act (ERISA) as applied to ERISA benefits plans in Koch v. Mork Clinic, P.A., 540 N.W.2d 526 (Minn. Ct. App. 1995), rev. denied (Jan. 12, 1996).”
We retrieved that opinion. In Koch, the district court had reduced a medical malpractice award by $119,826 that the plaintiff’s ERISA plan had paid, on the ground that “any subrogation right was not raised in a timely manner.” Koch, 540 N.W.2d at 529, 531. The Court of Appeals eliminated the offset, affirming the judgment as modified. Its reasoning ran in two steps:
Because the statutory definition of collateral source lists elements that define an ERISA plan, the statute refers to such a plan. Section 548.36 also has a connection to ERISA benefit plans. After a determination of liability, a court must reduce the award by the amounts of collateral source payments made to a plaintiff, excluding payments “for which a subrogation right has been asserted.” Minn. Stat. § 548.36, subds. 2, 3. This language connects collateral source offsets to subrogation claims arising under ERISA benefits plans.
Id. at 531–32. And its conclusion: “Because section 548.36 has both a reference and a connection to ERISA benefit plans, ERISA preempts it.” Id. at 532. The court reinstated the $119,826.
Three cautions. The decision construes the predecessor section number, § 548.36. It is a 1995 Court of Appeals decision, and ERISA preemption doctrine has moved since. And the Legislature has never repealed clause (3) — it still appears in the 2025 edition of the statute, with the note attached. Anyone proposing to deduct, or to resist deducting, ERISA-plan payments needs to read Koch and everything after it, not the annotation.
In an auto case, is § 548.251 even the right statute?
Usually not, for the no-fault benefits. Minn. Stat. § 65B.51, subd. 1 supplies a different mechanism entirely:
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, or which would be payable but for any applicable deductible. In any case where the claimant is found to be at fault under section 604.01, the deduction for basic economic loss benefits must be made before the claimant’s damages are reduced under section 604.01, subdivision 1.
Compare the two side by side and the differences are structural, not cosmetic:
| § 548.251 | § 65B.51, subd. 1 | |
|---|---|---|
| How it operates | On a party’s motion filed within ten days of entry of the verdict | “the court shall deduct” — no motion described in the subdivision |
| What is deducted | Payments made “up to the date of the verdict” | Benefits “paid or payable, or which would be payable but for any applicable deductible” |
| Premium offset | Yes, subd. 2(2) | None in the subdivision |
| Subrogation carve-out | Yes, subd. 2(1) | None in the subdivision |
| Order vs. comparative fault | Before the § 604.01 reduction, subd. 3(c) | Before the § 604.01 reduction |
The phrase “paid or payable, or which would be payable but for any applicable deductible” is the one to sit with. It reaches benefits that were never actually paid. A plaintiff who never submitted a no-fault claim does not thereby increase the tort recovery. The background of that system is at Minnesota no-fault is sold as a trade, and the threshold that governs whether a noneconomic claim exists at all is at the Minnesota no-fault tort threshold.
What is the client’s actual number?
Subdivision 4 answers the question every client asks and few lawyers raise first: “If the fees for legal services provided to the plaintiff are based on a percentage of the amount of money awarded to the plaintiff, the percentage must be based on the amount of the award as adjusted under subdivision 3.”
The contingent fee is computed on the adjusted award — after the clause (1) reduction and the clause (2) offset. Combined with subdivision 3(c), which requires the collateral-source adjustment to precede any comparative fault reduction, the sequence produces a number that is neither the verdict the client heard nor the figure on any single piece of paper in the file. Walking a client through that sequence is a conversation to have before trial, not after.
What to do
In discovery, not in the ten days:
- Identify every payor and get the amounts in writing — health plan, comp carrier, disability insurer, public program, wage-continuation plan.
- Ask each payor, in writing, whether it asserts a subrogation right, and keep the answer. That single fact moves the money between the plaintiff, the payor, and the defendant.
- Build the premium file. Two years of pre-accrual contributions plus everything paid, contributed, or forfeited through judgment, for the plaintiff and immediate family, with documents.
- Check the commencement date against August 1, 2024 to know which version of clause (2) governs.
- Determine whether the plan is an ERISA plan, and if so, whether it is self-funded. That question drives both the § 62A.095 analysis and the Koch problem.
Within ten days of entry of the verdict:
- Calendar from entry of the verdict, count every day under Minn. R. Civ. P. 6.01(a)(1), and treat 11:59 p.m. on the last day as the deadline for e-filing.
- File on clause (2) even if the defendant files on clause (1). The offset does not happen by itself.
- Check the proposed judgment against the statutory sequence before it is entered.
The observation
Every other part of a trial is adversarial in the way lawyers are trained for. This one is not. There is no jury, no live testimony, no cross-examination, and no closing. There is a stack of paper, filed in ten days, from which a judge determines two numbers and does arithmetic.
Which means the collateral-source motion is won or lost in discovery. The subrogation letters, the benefit ledgers, the payroll records, the plan documents — all of it either exists in the file when the verdict comes in, or it does not. A lawyer who wins the liability case and arrives at the § 548.251 motion without the premium file has done the difficult part and left money on the table in the easy part, and the client will experience the difference as a reduction in what they were told they won.
Madgett Law, LLC handles Minnesota personal injury litigation through verdict and post-verdict practice, including collateral source motions under Minn. Stat. § 548.251, no-fault deductions under § 65B.51, and subrogation and reimbursement disputes with health plans. If you have a case heading to trial, the record that decides this motion is the one being built right now. Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 548.251 (collateral source calculations) — subd. 1 (definition, including the “up to the date of the verdict” limitation and the four enumerated categories, and the exclusions within categories (2) and (4)); subd. 2 (predicate conditions of a civil action with liability admitted or determined and an award compensating for losses available to the date of the verdict by collateral sources; the ten-day motion measured from the date of entry of the verdict; the direction that “the parties shall submit written evidence of, and the court shall determine”; clause (1)’s exception for amounts “for which a subrogation right has been asserted”; clause (2)’s premium offset, including “paid, contributed, or forfeited,” “members of the plaintiff’s immediate family,” the two-year pre-accrual window, the added “and until judgment is entered,” and the “is receiving” condition); subd. 3(a) (reduction and offset), 3(b) (court’s discretionary ten-day request for additional written evidence or a conference), 3(c) (collateral-source adjustment precedes reduction under § 604.01, subd. 1); subd. 4 (contingent fee computed on the award as adjusted under subd. 3; subrogated provider not separately represented pays the same percentage of fees and its proportionate share of costs); subd. 5 (jury not informed of collateral sources or future benefits); together with the Revisor’s bracketed “[See Note.]” following subdivision 1 and the note itself. Minn. Stat. § 65B.51, subd. 1 (mandatory deduction of basic or optional economic loss benefits paid or payable, or payable but for a deductible, and the ordering rule relative to § 604.01, subd. 1). Minn. Stat. § 604.01, subd. 1 (referenced for the ordering rule only). All statutory text from the Minnesota Office of the Revisor of Statutes, 2025 Minnesota Statutes; no pending-2026-amendment banner appeared on § 548.251 or § 65B.51. Laws 2024, ch. 123, art. 15, § 13 (amending § 548.251, subd. 2, clause (2) to insert “and until judgment is entered”; effective-date clause: “This section is effective August 1, 2024, and applies to causes of action commenced on or after that date”) — session law text from the Revisor’s published chapter, including the new-text markup. Minn. R. Civ. P. 6.01(a)(1)–(2) (computation of time for a statute that does not specify a method) and 6.01(b) (last day ends at 11:59 p.m. local Minnesota time for electronic filing) (Minnesota Court Rules, as published by the Office of the Revisor of Statutes). Koch v. Mork Clinic, P.A., 540 N.W.2d 526 (Minn. Ct. App. 1995), rev. denied (Jan. 12, 1996) — full opinion text retrieved from the Caselaw Access Project (static.case.law), volume 540 N.W.2d, pages 526–532; quotations above are verbatim from that text, at 529 (the $119,826 collateral source offset), 531 (the district court’s timeliness ruling), 531–32 (the reference-and-connection passage), and 532 (the preemption conclusion and reinstatement); the “rev. denied (Jan. 12, 1996)” notation appears both in the Revisor’s note and in the Caselaw Access Project head matter (“Review Denied Jan. 12, 1996.”). This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Whether any particular payment is a collateral source, and what any particular verdict is reduced to, depends on the record, the payors, and the date the action was commenced. Do not use this article to compute a deadline in your own matter. No outcome is promised or implied.