Braunberger v. Interstate Engineering, Inc.

Decision Date21 March 2000
Docket NumberNo. 990160.,990160.
Citation2000 ND 45,607 N.W.2d 904
PartiesKent BRAUNBERGER, Individually, and as Next Friend for Adam Braunberger, a Minor; and Carol Braunberger, Plaintiffs and Appellants, v. INTERSTATE ENGINEERING, INC., a North Dakota Corporation; the State of North Dakota; the City of Jamestown, a North Dakota Political Subdivision; and Justin C. Wilson, Defendants and Appellees.
CourtNorth Dakota Supreme Court

Keith L. Miller of Miller, Norman & Associates, Moorhead, Minn., for plaintiffs and appellants.

Paul R. Oppegard of Smith Bakke Hovland & Oppegard, Moorhead, Minn., for defendants and appellees.

NEUMANN, Justice.

[¶ 1] Kent Braunberger, individually, and as next friend for Adam Braunberger, and Carol Braunberger ("the Braunbergers") appeal from the trial court's judgment allocating fault and assessing costs and disbursements. We affirm in part, reverse in part, and remand.

[¶ 2] On August 9, 1995, the Braunbergers were driving north on U.S. Highway 52/281. At the same time, a semi-trailer driven by Mike Klose was traveling south on Highway 52/281, followed by four vehicles. An Interstate Engineering employee, Justin Wilson, was driving the fourth vehicle. Four law enforcement vehicles and six officers were stopped adjacent to Highway 52/281's southbound lane, investigating an unrelated alleged felony theft.

[¶ 3] As Klose, driving south, approached the law enforcement stop, he drove his semi-trailer into the northbound lane to give the vehicles and officers a wide berth. Wilson, and the other vehicles following the semi-trailer, also drove into the northbound lane. Klose and three of the vehicles following him were able to pull back into the southbound lane. Wilson collided virtually head on with the Braunberger vehicle. Klose was the only eyewitness, observing the collision in his rear view mirror. Klose testified the driver of the Braunberger vehicle never applied brakes or took evasive action. None of the Braunbergers or Wilson has any memory of the collision. As a result of the collision, Adam Braunberger sustained contusions and abrasions; Carol Braunberger sustained contusions and a significant "road rash" on her right arm requiring skin grafting; Kent Braunberger sustained a closed head injury and multiple leg and ankle fractures requiring multiple days of hospitalization, weeks of physical therapy, and surgeries; and Justin Wilson suffered a brain injury and multiple fractures.

[¶ 4] On December 18, 1996, Kent Braunberger, individually, and as a next friend for Adam Braunberger, and Carol Braunberger sued Interstate Engineering, the State of North Dakota, and the City of Jamestown. Wilson then sued Kent Braunberger and the City of Jamestown. On August 12, 1997, the State of North Dakota was dismissed from the Braunbergers' action. The trial court consolidated the cases, granting the Braunbergers leave to add Wilson as a defendant. On May 19, 1998, Interstate Engineering made Rule 68 Offers of Judgment of $75,000 for Carol Braunberger and $325,000 for Kent Braunberger. The offers expired under the Rule on May 29, 1998. Before trial, Carol Braunberger and Kent Braunberger settled their claims against the City for $100,000. On October 15, 1998, all of Adam Braunberger's claims were settled without trial. [¶ 5] The remaining claims, Carol Braunberger and Kent Braunberger's claims against Interstate Engineering and Wilson, and Wilson's claims against Kent Braunberger and the City, were scheduled for a jury trial. Following jury selection, Wilson settled his claims against the City. On September 10, 1998, the only remaining claims, Carol Braunberger and Kent Braunberger against Interstate Engineering and Wilson, and Wilson against Kent Braunberger, were decided. The jury awarded Kent Braunberger damages of $625,604.05, Carol Braunberger damages of $67,481.44, and Wilson damages of $281,001.99. The jury allocated 20 percent fault to Interstate Engineering and Wilson, 20 percent fault to Kent Braunberger, and 60 percent fault to the City of Jamestown or others.

[¶ 6] After trial, the Braunbergers moved for a new trial under Rule 59(b)(6), N.D.R.Civ.P., and submitted a proposed order for judgment and judgment. On October 5, 1998, the trial court entered the proposed judgment awarding Kent Braunberger $125,120.81 and Carol Braunberger $13,496.28. The Braunbergers were also awarded $13,911.58 in costs and disbursements. In a separate judgment, Wilson was awarded $56,200 in damages and $6,518.15 in costs and disbursements. On January 13, 1999, the trial court denied the Braunbergers' motion for a new trial and vacated the Braunbergers' judgment because it failed to consider no-fault benefits paid or payable to the Braunbergers and the effect of the Rule 68 offers. The trial court denied costs and disbursements to the Braunbergers, and awarded Interstate Engineering and Wilson their costs and disbursements. On March 30, 1999, the trial court entered an amended judgment awarding the Braunbergers $112,845.75 in damages and Interstate Engineering and Wilson $10,139.21 in costs and disbursements. The Braunbergers appeal. Wilson has not appealed his separate judgment. Interstate Engineering and Wilson deposited $112,845.75 in an interest-bearing account pending the appeal.

I

[¶ 7] The Braunbergers argue the trial court abused its discretion by denying their motion for a new trial because the jury verdict was unsupported by sufficient evidence and was contrary to law. The Braunbergers moved for a new trial under Rule 59(b)(6), N.D.R.Civ.P. Rule 59(b)(6) permits a new trial when a jury verdict is unsupported by sufficient evidence or contrary to law. A motion under Rule 59(b)(6) is addressed to the sound discretion of the trial court. Symington v. Mayo, 1999 ND 48, ¶ 16, 590 N.W.2d 450. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Peterson v. Ramsey County, 1997 ND 92, ¶ 18, 563 N.W.2d 103. An abuse of discretion is never assumed; the burden is on the party seeking relief to affirmatively establish it. Peterson, at ¶ 18. The standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict. Barta v. Hinds, 1998 ND 104, ¶ 5, 578 N.W.2d 553.

[¶ 8] The trial court, after weighing all the evidence and judging the witnesses' credibility, held the jury's fault apportionment was not manifestly against the weight of the evidence, and denied the motion for a new trial. See Steckler v. Massey-Ferguson, Inc., 334 N.W.2d 659, 662 (N.D.1983)

. While the Braunbergers contend the jury improperly considered the severity of Wilson's injuries and their settlements with the City, there was sufficient evidence supporting the jury's fault allocations. Three of the six law enforcement officers gathered on the shoulder of U.S. Highway 52/281 were City police. The jury heard extensive evidence showing the law enforcement officers caused an unreasonable and dangerous distraction. Witnesses also testified Wilson may have been reasonable when entering the northbound lane, and neither Kent Braunberger nor Wilson applied brakes or took any evasive action. The Braunbergers presented contrary evidence, but the jury found Wilson was not solely at fault. The jury's evaluation of the evidence and its judgment of the witnesses' credibility should be given proper deference. Diversified Financial Systems, Inc. v. Binstock, 1998 ND 61, ¶ 10, 575 N.W.2d 677. After viewing the evidence in the light most favorable to the verdict, we believe the trial court did not act in an arbitrary, unreasonable, or unconscionable manner, and there was sufficient evidence to support the verdict. See Barta, at ¶ 5. The trial court did not abuse its discretion by denying the motion for a new trial.

II

[¶ 9] The Braunbergers argue the trial court erred in denying them costs and disbursements. First, the Braunbergers contend they should be allowed costs and disbursements under the October 5, 1998, judgment because neither Interstate Engineering nor Wilson objected to the costs and disbursements statement within seven days of the judgment's entry. N.D.R.Civ.P. 54(e)(1). We disagree because the trial court vacated the October 5, 1998, judgment. See N.D.R.Civ.P. 60.

[¶ 10] We review the granting of a motion to vacate under Rule 60, N.D.R.Civ.P., for abuse of discretion by the district court. Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996). Here, the October 5, 1998, judgment failed to consider the no-fault benefit payments paid or payable to the Braunbergers and the Rule 68 offers. These considerations are required to correctly calculate damages, and costs and disbursements awards. See Reisenauer v. Schaefer, 515 N.W.2d 152, 156 (N.D.1994)

(providing no-fault benefits must be excluded from the damages award to prevent double recovery); Vogel v. Pardon, 444 N.W.2d 348, 352 (N.D.1989) (providing Rule 68 offers influence costs and disbursements awards). The trial court did not abuse its discretion, and the Braunbergers cannot therefore be awarded costs and disbursements under a vacated judgment.

[¶ 11] Second, the Braunbergers contend they should be allowed costs and disbursements for the period before the Rule 68 offers were made because they are prevailing parties. We agree.

[¶ 12] The trial court determined "[e]ven though we do not have a prevailing party in this case, the Court still may use [N.D.C.C. § 28-26-06] to determine what costs are `necessary' and payable by the Plaintiffs due to the Rule 68 N.D.R.Civ.P. offer." On May 19, 1998, Interstate Engineering made written settlement offers under Rule 68, N.D.R.Civ.P. That rule provides, "[i]f the Judgment is not more favorable than the offer, the offeree must pay the costs incurred after making the offer." N.D.R.Civ.P. 68(a). Here, the judgments were less...

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