Haff v. Hettich

• Decision Date: 19 May 1999
• Docket Number: No. 980229,980229
• Citation: 1999 ND 94,593 N.W.2d 383
• Parties: Tony HAFF, Plaintiff and Appellant, v. Damon HETTICH, Defendant. and Farmers Insurance Exchange, Defendant and Appellee
• Court: North Dakota Supreme Court

Page 383

593 N.W.2d 383

1999 ND 94

Tony HAFF, Plaintiff and Appellant, v. Damon HETTICH, Defendant and Farmers Insurance Exchange, Defendant and Appellee

No. 980229.

Supreme Court of North Dakota.

May 19, 1999.

David A. Tschider, Tschider & Smith, Bismarck, N.D., for plaintiff and appellant.

Jason R. Vendsel, McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for defendant and appellee.

SANDSTROM, Justice.

¶1 Tony Haff appealed from a judgment ordering Farmers Insurance Exchange to pay him $19,158.74 in underinsured and basic no-fault benefits. We hold an original tortfeasor is not liable under N.D.C.C. § 32-03.2-02 for damages caused by medical malpractice in treating the original injury; N.D.C.C. § 32-03.2-02 does not violate substantive due process; and under N.D.C.C. ch. 26.1-41, bodily injury arising out of a motor vehicle accident includes negligent medical treatment of personal injuries sustained in a motor vehicle accident. We affirm in part, reverse in part, and remand with instructions.

I

¶2 Haff initially sued Hettich for personal injuries incurred in a 1991 motor vehicle accident. At trial, Hettich claimed Haff's injuries were caused, in part, by negligent post-accident treatment by Haff's chiropractors, who were not named as parties in the action. Haff requested a jury instruction following Polucha v. Landes, 60 N.D. 159, 233 N.W. 264 (1930), which recognized an original tortfeasor was liable for aggravation of an original injury caused by the negligence of a physician reasonably selected by the injured person. The trial court decided the modified comparative fault provisions of N.D.C.C. § 32-03.2-02 effectively overruled Polucha and refused to give Haff's requested instruction. The court, instead, instructed the jury to apportion fault among those parties and other persons who were at fault for Haff's injuries. The court instructed the jury on the standard of care for Haff's chiropractors. The court also instructed the jury Hettich was not liable for damages proximately caused by the negligence of Haff's chiropractors, and Hettich had the burden of proving Haff's chiropractors were negligent.

¶3 The jury found Hettich's negligence proximately caused serious injury to Haff and other persons' negligence also proximately caused injury to Haff. The jury apportioned forty percent of the fault to Hettich and sixty percent of the fault to others. The jury decided Haff incurred $161,000 in non-economic damages for past and future pain, discomfort, and mental anguish, and $29,000 in economic damages for past and future medical expenses and loss of productive time.

¶4 Haff informed Farmers Insurance Group, his underinsured and no-fault carrier, of a proposed settlement under N.D.C.C. § 26.1-40-15.5(2) with Hettich and Heritage Mutual Insurance Company, Hettich's insurance carrier. Haff subsequently settled with Hettich for $50,000, the liability limit of Hettich's policy with Heritage.

¶5 Farmers, Haff, and Hettich then stipulated to allow Farmers to intervene in Haff's action against Hettich to decide Farmers' liability to Haff for underinsured and no-fault benefits. Farmers, Haff, and Hettich stipulated to dismiss Hettich from the action with prejudice. The parties agreed, however, Haff would appeal the decision in Haff v. Hettich for a ruling on whether N.D.C.C. § 32-03.2-02 overruled Polucha and whether Farmers was obligated for either forty percent, or all of Haff's damages, less the amount paid by Heritage. Their stipulation provided:

Unless otherwise ordered by the North Dakota Supreme Court or the District Court in Haff v. Hettich, with respect to all damage issues, Farmers and Haff agree that both and each shall be fully and finally bound by a final post appeal judgment in the Haff v. Hettich case. It will not be necessary for Tony Haff to relitigate liability or damage issues in a second action against Farmers, the underinsured and no-fault carrier.

¶6 Haff amended his complaint to allege a claim directly against Farmers for $110,000 in underinsured benefits for his non-economic damages and $29,000 in no-fault benefits for his economic damages. ¹ Farmers answered, alleging it was obligated for no-fault benefits totaling forty percent of Haff's $29,000 in economic damages and underinsured benefits representing forty percent of Haff's $161,000 in non-economic damages, minus the $50,000 paid by Heritage. Haff and Farmers both moved for summary judgment. Haff also moved for a new trial, contending the trial court erred in failing to instruct the jury under Polucha and seeking a new trial solely on the issue of whether Haff utilized reasonable care in selecting his chiropractors.

¶7 The trial court denied Haff's motion for summary judgment and for a new trial, ruling N.D.C.C. § 32-03.2-02 effectively overruled Polucha. The court granted Farmers' motion for summary judgment, concluding Farmers was obligated for forty percent of Haff's damages minus amounts previously paid. The court decided Farmers owed Haff $14,400 for underinsured benefits, which represented forty percent of the $161,000 in non-economic damages minus the $50,000 previously paid by Heritage. The court also concluded Farmers owed Haff $4,758.74 for no-fault benefits, which represented forty percent of the $29,000 in economic damages minus $6,841.26 previously paid by Farmers. Judgment was entered ordering Farmers to pay Haff $19,158.74, and Haff appealed the judgment.

¶8 The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Haff's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01. ²

II

¶9 We review this appeal under our standards for summary judgment, which is a procedure for promptly and expeditiously disposing of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts will not alter the result. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996). In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences that reasonably can be drawn from the evidence. Id. Questions of law are fully reviewable on appeal. State Farm Mut. Auto. Ins. Co. v. Estate of Gabel, 539 N.W.2d 290, 292 (N.D.1995). The interpretation of a statute is a question of law, which is fully reviewable. Estate of Thompson, 1998 ND 226, p 6, 586 N.W.2d 847.

III

¶10 Haff argues Farmers, as his underinsured carrier, is responsible for all non-economic damages proximately caused by Hettich's negligence and not paid by Heritage, which, under Polucha, 60 N.D. 159, 233 N.W. 264 (1930), includes the damages attributable to the negligence of Haff's chiropractors. Haff thus argues Farmers is obligated for underinsured benefits for the sixty percent fault attributable to his chiropractors. Farmers responds N.D.C.C. § 32-03.2-02 effectively overruled Polucha and requires several apportionment of fault and damages among all persons who contributed to Haff's injuries.

A

¶11 In Polucha, 60 N.D. at 162-63, 233 N.W. at 265, an employee injured his ankle during the course of his employment. The employee received workers compensation benefits for his ankle injury and thereafter sued his physician for malpractice in treating the ankle injury. Id. at 162-63, 233 N.W. at 265. The physician defended, contending the employee's claim had been paid by the workers compensation bureau and the bureau was subrogated to the employee's rights against the physician. Id. at 163, 233 N.W. at 265-66.

¶12 The Court reversed a damage award to the employee and dismissed his malpractice action against the physician, concluding the employee was entitled to workers compensation benefits for the aggravation of his work injury by medical malpractice, and ruling the employee's receipt of workers compensation benefits transferred the employee's action against the physician to the bureau under the subrogation provisions of the workers compensation law. Polucha, 60 N.D. at 168-74, 233 N.W. at 268-71. The Court recognized the common law rule that an original tortfeasor was liable for aggravation of original injuries caused by the malpractice of a physician reasonably selected by the injured person, and stated the aggravation of the original injury was foreseeable and was not an independent, intervening act that broke the chain of causation between the original injury and the ultimate result. Id. at 164, 233 N.W. at 266. Under Polucha, an original tortfeasor's acts are the proximate cause of damages from aggravation of the initial injury by the malpractice of a physician reasonably selected by the injured person.

B

¶13 In 1987, the Legislature enacted the modified comparative fault provisions of N.D.C.C. ch. 32-03.2. See 1987 N.D. Sess. Laws ch. 404. When Haff was injured, N.D.C.C. § 32-03.2-02 ³ provided:

Modified comparative fault. Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only,...