Magart v. Schank, 99-482.

• Decision Date: 09 November 2000
• Docket Number: No. 99-482.,99-482.
• Citation: 2000 MT 279,302 Mont. 151,13 P.3d 390
• Parties: William MAGART, Plaintiff and Appellant, v. Gregg SCHANK, Defendant and Respondent.
• Court: Montana Supreme Court

13 P.3d 390

2000 MT 279

302 Mont. 151

William MAGART, Plaintiff and Appellant, v. Gregg SCHANK, Defendant and Respondent.

No. 99-482.

Supreme Court of Montana.

Submitted on Briefs November 18, 1999.

Decided November 9, 2000.

Stephen D. Roberts, Attorney at Law, Bozeman, MT, For Appellant.

Steve Reida; Landoe, Brown, Planalp, Braaksma & Reida, Bozeman, MT, For Respondent.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 William Magart (Magart) appeals from the judgment entered by the Eighteenth Judicial District Court, Gallatin County, on a jury verdict finding in favor of Magart but failing to award damages on his claim for lost earning capacity. We affirm.

¶ 2 The issue on appeal is whether substantial credible evidence supports the jury's verdict of zero damages on Magart's claim for lost earning capacity.

BACKGROUND

¶ 3 This case arose from an automobile accident which occurred when a vehicle driven by Gregg Schank (Schank) collided with Magart's vehicle at an intersection outside of Belgrade, Montana, on November 2, 1996. Magart and his wife, who was a passenger in his vehicle, filed a complaint against Schank alleging that Schank negligently caused the accident which resulted in injuries to them and requesting a variety of damages. Schank admitted that he negligently caused the accident and the case proceeded to a jury trial on the issues of whether the accident was the proximate cause of the Magarts' injuries and damages. The jury found in favor of the Magarts on the proximate cause issue and awarded them damages for past and future medical expenses, past lost earnings, past and future pain and suffering, and loss of established course of life. The jury awarded Magart zero damages on his claim for lost earning capacity. Magart appeals.

STANDARD OF REVIEW

¶ 4 We review a jury's verdict to determine whether there is substantial credible evidence in the record to support it. Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 33, 909 P.2d 700, 705. It is not our function to agree or disagree with the jury's verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other. Barnes, 275 Mont. at 33,909 P.2d at 705. It is only in rare cases that a jury verdict should be set aside. Tappan v. Higgins (1989), 240 Mont. 158, 160, 783 P.2d 396, 397. Moreover, in reviewing the sufficiency of the evidence to support a jury verdict, we review the evidence in a light most favorable to the prevailing party. Morgan v. Great Falls School Dist. No. 1, 2000 MT 28, ¶ 8, 298 Mont. 194, 57 8, 995 P.2d 422, 57 8, (citation omitted).

DISCUSSION

¶ 5 Does substantial credible evidence support the jury's verdict of zero damages on Magart's claim for lost earning capacity?

¶ 6 At the time of the accident in November of 1996, Magart was employed as a concrete truck driver with Kenyon Noble Ready Mix Company (Kenyon Noble). His job entailed driving concrete mixer trucks to locations where concrete was to be poured and lifting metal chutes off of—and reattaching them to—the truck to pour the concrete. In the spring of 1998, Magart quit Kenyon Noble and went to work for D'Agostino Concrete doing the same type of work. Later in 1998, he began working for Door Tech installing residential and commercial garage doors; the work included overhead work such as lifting and carrying garage door panels and winding door springs. Magart was still working for Door Tech at the time of trial in May of 1999.

¶ 7 Magart contended at trial that, as a result of the accident, he sustained injuries to his neck, upper back and right shoulder. He further contended that his shoulder injury impaired his ability to work in both his previous employment driving a cement truck and his current employment installing commercial and residential garage doors because the injury makes it difficult to do the overhead lifting which is required in these jobs. Accordingly, he requested an award of damages for future loss of earning capacity. The jury found that Magart had been injured as a result of the accident and awarded him damages for his other claims, but awarded zero damages for his lost earning capacity claim. Magart asserts generally that this portion of the jury's verdict is not supported by substantial evidence. Specifically, he argues the jury was required to find that he suffered a loss of earning capacity because the uncontroverted testimony at trial established that he suffered continuing shoulder problems due to his job duties and that he would be unable to continue his employment as either a cement truck driver or garage door installer as a result of his injury.

¶ 8 Following the accident, Magart sought treatment from Dr. Ronald Hecht (Hecht), a chiropractor, and Dr. James Weiss (Weiss), a medical doctor, for pain in his neck and upper back. Weiss referred Magart to Steve Anderson (Anderson), a physical therapist, who assessed Magart as having a shoulder impingement problem in addition to soft tissue strain in his neck and back. Thereafter, Magart's physical therapy sessions with Anderson focused on treating his shoulder problem. Magart subsequently was referred to Dr. John Campbell (Campbell), an orthopedic surgeon, who operated on Magart's shoulder. Gary Lusin (Lusin), a physical therapist, later performed a functional capacities evaluation (FCE) to determine Magart's abilities and limitations relative to his shoulder injury.

¶ 9 At trial, Magart presented expert testimony from Anderson, Campbell and Lusin regarding his shoulder injury. Magart contends these expert witnesses testified unanimously that the condition of his shoulder would gradually deteriorate if he continued in employment which entails overhead lifting, such as driving a cement truck or installing garage doors, and that he must abandon all manual work which requires overhead lifting. He further contends that the expert testimony was uncontradicted and, as a result, could not be disregarded by the jury. Thus, according to Magart, the jury was required to find, based on the expert testimony, that he suffered a loss of earning capacity because he cannot continue working in his current or past employment. He cites Tappan in support of his argument that a jury verdict awarding no damages for loss of future earning capacity must be set aside where there is uncontradicted medical testimony that a plaintiff cannot continue working in his or her occupation.

¶ 10 A jury may not disregard uncontradicted, credible nonopinion evidence. Thompson v. City of Bozeman (1997), 284 Mont. 440, 443, 945 P.2d 48, 50 (citations omitted). This general rule, however, applies only to nonopinion lay witness testimony. Expert testimony is opinion evidence which a jury is entitled to disregard if it finds the testimony unpersuasive. See Barnes, 275 Mont. at 33-34,

909 P.2d at 705; Holenstein v. Andrews (1975), 166 Mont. 60, 65, 530 P.2d 476, 479; Putman v. Pollei (1969), 153 Mont. 406, 411, 457 P.2d 776, 779. The District Court instructed the jury that it was not bound by the expert testimony and should give the testimony the weight, if any, to which the jury deemed it entitled. Consequently, and contrary to Magart's contention, the...