Blumenshine v. Baptiste

• Decision Date: 04 March 1994
• Docket Number: Nos. S-4997,S-5018,s. S-4997
• Citation: 869 P.2d 470
• Parties: Mark BLUMENSHINE, Appellant/Cross-Appellee, v. Wilfred J. BAPTISTE, Sr., and Loretta Janet Baptiste, Appellees/Cross-Appellants.
• Court: Alaska Supreme Court

Page 470

869 P.2d 470

Mark BLUMENSHINE, Appellant/Cross-Appellee, v. Wilfred J. BAPTISTE, Sr., and Loretta Janet Baptiste,

Appellees/Cross-Appellants.

Nos. S-4997, S-5018.

Supreme Court of Alaska.

March 4, 1994.

Michael L. Lessmeier and Sheldon E. Winters, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellant/cross-appellee.

Loren Domke, Loren Domke, P.C., Juneau, for appellees/cross-appellants.

Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

RABINOWITZ, Justice.

Mark Blumenshine asserts that the superior court erred in failing to reduce the jury's award of past medical expenses to Wilfred J. Baptiste, Sr. based upon Baptiste's comparative fault. The superior court ruled that Blumenshine waived the point because the jury's verdict was inconsistent and Blumenshine failed to object to the inconsistency before discharge of the jury. Baptiste cross-appeals, claiming the superior court erred in setting aside the jury's award of future medical expenses and in determining that Blumenshine was the prevailing party in awarding attorney's fees.

We affirm the superior court's set aside of the award of future medical expenses and its refusal to reduce the jury's award for past medical expenses. We reverse the superior court's prevailing party determination.

I. FACTUAL AND PROCEDURAL BACKGROUND

Baptiste and Blumenshine were involved in an automobile accident in which Baptiste was injured. Blumenshine admitted that he was negligent and that his negligence proximately caused injury to Baptiste. However, Blumenshine contended that Baptiste's own negligence was partly or fully responsible for the latter's injuries.

At trial Baptiste sought compensatory damages for past medical expenses in the amount of $19,371, future medical expenses in the same amount, past and future physical impairment, past and future pain and suffering; he also sought punitive damages. Baptiste's wife sought damages for loss of consortium.

In a special verdict, the jury awarded Baptiste $19,371.36 for past medical expenses, $2,500 for future medical expenses, $8,000 for past and future physical impairment and $8,001 for past and future pain and suffering. The jury awarded no loss of consortium or punitive damages. The jury also found that Baptiste was 25% comparatively negligent, and that this negligence was a legal cause of his injuries. An asterisk and handwritten note on the jury's special verdict form indicated that the damage amounts specified in the special verdict categories "should be net amounts[.] Plaintiff to receive all amounts."

Upon return of the special verdict, the superior court held a bench conference with the attorneys. The court called the attorneys' attention to the jury's handwritten note, but did not at that time inform them of the amounts awarded. With the attorneys' consent, the superior court asked the jury whether it intended "that these numbers have included your calculation as to comparative negligence, and that you expect the plaintiff to receive all those numbers." The foreperson responded "Yes." The superior court then read the special verdict into the record. After both attorneys declined the opportunity to poll the jury, the superior court discharged the jury. Neither counsel objected to its discharge.

Blumenshine later moved for judgment notwithstanding the verdict (JNOV) on the basis that (1) the award of past medical expenses did not reflect Baptiste's 25% comparative negligence, and (2) the evidence presented was insufficient to support the award of future medical expenses. Blumenshine also moved for a determination that he was the prevailing party for purposes of an award of attorney's fees and costs.

The superior court denied Blumenshine a 25% reduction in the jury's award of past medical expenses. The court granted Blumenshine's motion with respect to future medical expenses and decided Blumenshine was the prevailing party. This appeal and cross-appeal followed. ¹

II. DISCUSSION

A. Waiver of Inconsistency in Jury's Verdict

Blumenshine argues that the superior court erred in declining to reduce the jury's award of past medical expenses to reflect Baptiste's comparative negligence. In response, Baptiste argues that the jury's verdict as to past medical expenses was inconsistent, and that Blumenshine waived any objection to the award by failing to challenge the consistency of the verdict prior to the jury's discharge.

Baptiste adduced evidence showing he had sustained $19,371 in damages for past medical expenses. The jury found that Baptiste had suffered $19,371 in past medical expenses and that 25% of his damages were sustained as a consequence of his comparative fault. ² Without the jury's note to its special verdict, Baptiste's award would have been reduced by 25% to reflect his comparative negligence. However, the jury's note and the foreperson's response to the superior court's question indicated that the jury had already reduced the amount awarded for past medical expenses in consideration of Baptiste's comparative negligence. Given the evidence produced as to past medical expenses, the amount of damages for past medical expenses found by the jury, and the jury's note to its special verdict, it is clear that the verdict as to this damage issue is inconsistent.

Blumenshine urges us to ignore the handwritten note as "surplusage." In support of this contention, Blumenshine cites instances in which courts have disregarded extraneous notes from the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind.App.1981) (disregarding a note that stated that portion of award was for future medical expenses); Gilmore v. Control Data Corp., 442 N.W.2d 835, 839 (Minn.App.1989) (disregarding a note that stated that attorney's fees and court costs were to be awarded); Gustavson v. O'Brien, 87 Wis.2d 193, 274 N.W.2d 627, 634 (1979) (disregarding a note regarding contributory negligence where it was not an issue in the case). The notes in Barrow and Gilmore did not create any inconsistencies. Rather, they constituted additional "findings" the jury was not asked to make. Here the jury's note explained its award for past medical expenses and therefore, it cannot be struck as mere surplusage.

"To give effect to the jury trial right in civil cases" this court will examine the pleadings, instructions, arguments and evidence to obtain a view of the case that harmonizes what seems at first to be an inconsistent verdict. Schmit v. Stewart, 601 P.2d 256 (Alaska 1979). "We will look for consistency, but will not create it where there is none." City of Homer v. Land's End Marine, 459 P.2d 475, 478 (Alaska 1969). Blumenshine has failed to present any plausible theory of consistency short of ignoring the note and the foreperson's response to the superior court's inquiry.

Based on the inconsistency of the jury's verdict, Baptiste argues that Blumenshine waived any objection to the verdict. ³ We agree. "Challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury." Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 446 n. 7 (Alaska 1989); City of Homer, 459 P.2d at 480 (inconsistency between total award of $84,000 on a twenty-year contract and finding that plaintiff had suffered $500 damage in three years and eight months was waived). We have noted that the waiver rule "promotes the fair and expeditious correction of error." Id. (quoting Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968)).

The superior court called the note to the attorneys' attention and with the attorneys' approval questioned the jury about its intent. After reading the verdict into the record and offering to poll the jury, the superior court discharged the jury. Despite this notice, counsel allowed the jury to be discharged and the special verdicts filed. Since Blumenshine failed to challenge the consistency of the special verdict pertaining to damages for past medical expenses before the jury was discharged, we hold that he waived this argument.

B. Award of Future Medical Expenses

In response to Blumenshine's motion for JNOV, the superior court set aside the jury's award of $2,500 for future medical expenses. Baptiste presented medical testimony that his pain and disability were permanent and detailed evidence of his past medical expenses. He asserts that his future medical expenses can be inferred from the permanency of his injuries and the cost of his past medical treatment for pain and disability caused by the accident in question.

To recover for future medical expenses one must prove to a reasonable probability that they will occur. Maddocks v. Bennett, 456 P.2d 453, 458 (Alaska 1969). "[T]he jury cannot be allowed to speculate or guess in making allowance for future medical expenses; there must be some data furnished the jury upon which it might reasonably estimate the amount to be allowed for this item." Henderson v. Breesman, 269 P.2d 1059, 1061-62 (Ariz.1954), quoted in City of Fairbanks v. Nesbett, 432 P.2d 607, 618 n. 31 (Alaska 1967).

Baptiste was required to present both evidence that medical treatment would be necessary, and evidence of the treatment's anticipated cost to recover for future medical expenses. The Nevada Pain and Rehabilitation Center (Center), where Baptiste participated in a twenty-day chronic pain management program, concluded that Baptiste did not need any further medical evaluations or medical treatment. The Center recommended that Baptiste exercise, return to work and lose weight. Although cortisone treatment was suggested by a physician, Baptiste did not indicate that he would undertake the treatment or what this treatment would cost. Accordingly, Baptiste did not prove to a reasonable certainty that he would incur future medical expense. We therefore affirm the superior court's grant of JNOV as to the jury's award of damages for future medical expenses.

C. Prevailing Party Determination

"[A]n award of attorney's fees to the...