Calavera v. Vix, 10738

• Decision Date: 30 October 1984
• Docket Number: No. 10738,10738
• Citation: 356 N.W.2d 901
• Parties: Richard V. CALAVERA, Plaintiff and Appellant, v. Lyndon W. VIX, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 901

356 N.W.2d 901

Richard V. CALAVERA, Plaintiff and Appellant, v. Lyndon W. VIX, Defendant and Appellee.

Civ. No. 10738.

Supreme Court of North Dakota.

Oct. 30, 1984.

Teevens, Johnson & Montgomery, Minot, for plaintiff and appellant; argued by Bruce Montgomery, Minot.

Kenner, Halvorson & Sturdevant, Minot, for defendant and appellee; argued by Harris P. Kenner, Minot.

SAND, Justice.

Calavera appeals from a summary judgment dismissing his action against Vix. We reverse and remand for a trial on the merits.

Calavera filed an action for damages alleging that he sustained injuries in a car accident which was caused by Vix's negligence. The district court entered a summary judgment dismissing Calavera's action on the ground that Calavera failed to meet the $1,000 medical expense threshold under the North Dakota Auto Accident Reparations Act, Chapter 26-41, N.D.C.C., within the applicable statute of limitations.

Under Subsection 26-41-12(1), N.D.C.C., a defendant who is a "secured person" is exempt from liability for non-economical loss unless the injury is a "serious injury" which, for purposes relevant to this case, is defined as "an accidental bodily injury which results in ... medical expenses in excess of one thousand dollars." Although Calavera filed his action within six years, the district court determined that the action was barred because Calavera had not incurred the requisite $1,000 medical expense threshold within that six-year period.

The district court correctly determined that the six-year statute of limitations under Subsection 28-01-16(5), N.D.C.C., is applicable to Calavera's negligence action against Vix. Hulne v. International Harvester Company, 322 N.W.2d 474 (N.D.1982). The court erred, however, in its interpretation and application of that statute in relation to the North Dakota Auto Accident Reparations Act.

It is undisputed that both parties are "secured persons" under the North Dakota Auto Accident Reparations Act. It is also undisputed that Calavera filed his action within six years from the date of the accident but that Calavera did not receive medical services in excess of $1,000 until sometime after that six-year period. Under these circumstances, we cannot agree with the district court that Calavera's action is barred by the statute of limitations. ¹

In Skoog v. City of Grand Forks, 301 N.W.2d 404 (N.D.1981), this Court construed a statute which required a damage claim against a municipality to be filed within 90 days after sustaining an injury and provided that a claimant could not recover damages in excess of the amount demanded in the claim. The claimant asserted that because of the uncertain nature of his injuries and the uncertainty of the amount of his future damages he was unable to verify with specificity the amount of his damages within 90 days. The claimant contended that under the circumstances he should not be precluded from recovering damages in excess of the amount demanded in the claim. This Court agreed with the claimant that the statute did not limit the claimant's recovery to the damage amounts stated in the claim, and we construed the statute as allowing recovery for future damages which were "reasonably certain to occur" even though the exact dollar amount could not be ascertained or specified within the 90-day time limit to file the claim with the municipality.

We have also held that a plaintiff may recover for future medical services if there is "substantial evidence to establish with reasonable medical certainty that such future medical services are necessary." South v. National Railroad Passenger Corporation, 290 N.W.2d 819, 842 (N.D.1980).

In construing the six-year statute of limitations in conjunction with the liability exemption provisions of the North Dakota Auto Accident Reparations Act, we note, as we did in S...