Moszer v. Witt

• Decision Date: 15 February 2001
• Docket Number: No. 20000202, No. 20000203.
• Citation: 622 N.W.2d 223,2001 ND 30
• Parties: Heather MOSZER, Plaintiff, and American Family Mutual Insurance Company, Plaintiff, Appellant and Cross-Appellee, v. Mike WITT, Defendant, Appellee and Cross-Appellant. Mike WITT, Plaintiff, Appellee and Cross-Appellant, v. Heather MOSZER, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

622 N.W.2d 223

2001 ND 30

Heather MOSZER, Plaintiff, and American Family Mutual Insurance Company, Plaintiff, Appellant and Cross-Appellee, v. Mike WITT, Defendant, Appellee and Cross-Appellant.

Mike WITT, Plaintiff, Appellee and Cross-Appellant, v. Heather MOSZER, Defendant, Appellant and Cross-Appellee.

Nos. 20000202, 20000203.

Supreme Court of North Dakota.

February 15, 2001.

Steven Francis Lamb, Senior Claims Attorney, American Family Insurance, Fargo, ND, for plaintiff, appellant, and cross-appellee American Family Mutual Insurance Company and defendant, appellant, and cross-appellee Heather Moszer.

William P. Harrie, Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendant, appellee, cross-appellant, and plaintiff Mike Witt.

KAPSNER, Justice.

[¶ 1] Heather Moszer and American Family Mutual Insurance Company ("American Family") appealed from a judgment dismissing their claims for damages against Mike Witt and from an order denying their motion for a new trial. Witt appealed from an order denying his motion to dismiss American Family's subrogation claim against him for damages sustained by Scott Akers. We hold the jury verdict is inconsistent and irreconcilable and the trial court erred in its communication with the jury during the deliberation process. The trial court, therefore, abused its discretion in denying the motion for a new trial. We also hold Witt's objection to American Family's assignment from and claim for damages on behalf of Akers is without merit, and we affirm the court's order denying Witt's motion to dismiss that claim. We reverse the judgment and the order denying a new trial, and we remand the case for a new trial on the merits.

I

[¶ 2] On December 7, 1996, Heather Moszer was driving in the westbound lane of 13th Avenue South in Fargo and stopped to make a left turn at the University Drive intersection. When traffic cleared as the light turned yellow, she proceeded to make the left turn. A vehicle driven by Mike Witt in the eastbound lane of 13th Avenue South entered the intersection and struck Moszer's vehicle, pushing it into a vehicle driven by Scott Akers. All three vehicles were damaged in the accident. Moszer and her insurer, American Family, commenced a small claims court action against Witt, who removed the matter to district court and brought a separate action against Moszer for damages to his vehicle. The two actions were consolidated for trial. American Family sought subrogation of $2,715 for payments made to Moszer and of $1,459.12 for payments made to Akers. Moszer sought her deductible of $100. Witt sued for damages to his vehicle of $2,269.27.

[¶ 3] Witt's motion to dismiss American Family's subrogation claim on behalf of Akers was denied by the trial court on January 27, 2000. Following a jury trial, judgment was entered dismissing Moszer's and American Family's claims against Witt and awarding Witt 100 percent of his damages, plus costs.

[¶ 4] Moszer and American Family moved for a new trial, alleging several grounds. They asserted under N.D.R.Civ.P. 59(b)(1) there were irregularities in the proceedings which denied them a fair trial, alleging the jury verdict was inconsistent, the trial court made changes to the special verdict form during jury deliberations without first seeking approval of the parties, and the trial court held improper discussions and gave improper instructions to the jury during the deliberation process. They asserted a right to a new trial under N.D.R.Civ.P. 59(g) because there was plain disregard by the jury of the instructions of the court so as to demonstrate a misapprehension of the instructions. They also sought a new trial under N.D.R.Civ.P. 59(b)(6), claiming there was insufficient evidence to support the jury verdict. The trial court denied the motion.

II

[¶ 5] Moszer and American Family assert they are entitled to a new trial because the jury verdict is inconsistent and irreconcilable and because of the irregularity of proceedings conducted by the trial court during the jury deliberation process.

[¶ 6] The jurors and the parties were brought into the courtroom after the jury indicated it had reached a verdict. On the special verdict form the jury found Moszer was negligent and her negligence was a proximate cause of the accident. The jury found Witt was neither negligent nor a proximate cause of the accident, but the jury apportioned fault for the accident 75 percent to Moszer and 25 percent to Witt. In open court with the parties present, the trial judge had a discussion with the jury:

THE COURT: ... Question No. 3 says do you find by the greater weight of the evidence that Defendant Mike Witt was negligent at the time and place referred to in the evidence. Answer yes or no. You said no, and then that he wasn't the proximate cause. But then you put 25 percent of negligence to him.

THE JURY: We misunderstood the question. Then we misunderstood the question in it's [sic] entirety, I imagine.

THE COURT: Well,—

THE JURY: We don't believe he was negligent.

THE COURT: You don't believe he was negligent at all?

THE JURY: Uh-huh.

THE COURT: He wasn't negligent at all. Okay. So in your instruction [sic] on the 25 percent—so are you saying then that Heather Moszer was a hundred percent negligent? Is that what you were intending?

THE JURY: I guess the question we had, if Mike was speeding up, if he wouldn't have sped up that might have avoided it. But we weren't there, we don't know.

There was further discussion between the court and the jurors, concluding with the following exchange:

THE COURT: You're saying he's at fault 25 percent, or negligent 25 percent? It's the same thing. Negligence and fault is the same thing.

A JUROR: It would be negligence. Then it would be negligence. That would be negligence.

So our answer would have been yes.

THE COURT: That's what I was wondering. No proximate cause you're saying but he was negligent?

A JUROR: No. We're saying there was a proximate cause but no negligence.

We are totally confused.

THE COURT: Maybe we'll have to send you back there.

THE JURY: That's fine. We're not judges.

THE COURT: Because you can have somebody who—well, it's happened where they're negligent but were not the proximate cause of the accident. We've had that happen.

Or, you know, we can send you back there and have you look at it again, you know, just so we don't have an inconsistent verdict here is all we're looking at.

[¶ 7] The court then recessed while the jury deliberated further and again reached a verdict. The jury found Moszer was negligent, her negligence was a proximate cause of the accident, and the jury apportioned 75 percent of the fault to her. The jury found Witt was not negligent, but he was a proximate cause of the accident, and the jury assigned 25 percent of the fault to him. The following exchange in open court with the parties present occurred between the court and the jury:

THE COURT: ... Well, now we've got a little problem here. Question No. 3. The jury found that by the greater weight of the evidence was the Defendant, Mike Witt, negligent at the time and place of the accident referred to in the evidence? No. You find by the greater weight of the evidence that Defendant Mike Witt's negligence was a proximate cause of the accident referred to in the evidence. Yes. But then in the verdict form it says he was 25 percent negligent. See, there's no such thing as 25 percent proximate cause.

A JUROR: We were just discussing what the proximate cause sheet said and it's really confusing. As where one is negligent at time and place, the other one is negligent and a proximate cause.

....

THE COURT: A proximate cause, it says, is a cause which in natural and continuous sequence produces the injury and without which the injury would not have occurred. It is a cause which had a substantial part in bringing about the injury either immediately or through events which follow one another.

I mean, there are instances where somebody may be negligent but their negligence maybe doesn't do anything. So it's not the proximate cause of the accident. You know, that happens in some cases.

But I don't know of a situation where you have no negligence but a proximate cause of the accident. You can have it the other way around, you know. I can be negligent but that may not proximately cause any harm, you know.

A JUROR: So we just basically—

THE COURT: I don't know. But we'll get it straightened out before we leave.

[¶ 8] There was considerable additional discussion between the court and the jurors, with the court trying to ascertain the jury's intent in answering the questions the way the jury did. At one point during the discussion the trial court attempted to give the jury an example of the elements of negligence and proximate cause by describing a hypothetical situation in which a doctor "operating could be negligent and not put enough stitches in." The jury expressed confusion over the definitions of negligence and proximate cause, and there was considerable continued discussion between the court and the jurors. Ultimately, the jury arrived at a third verdict during the open court discussion with the trial judge. The jury found Moszer was negligent, her negligence was a proximate cause of the accident, and it assigned her 75 percent of the fault for the accident. This time, however, the jury found Mike Witt was negligent but was not a proximate cause of the accident, and the jury still assessed 25 percent of the fault for the accident to Witt.

[¶ 9] In an attempt to reconcile the jury's findings, the court eliminated language on the special verdict question allocating percentages of fault that was a proximate cause:

A JUROR: So we can leave the 75-25 there.

A JUROR: Even if it's no approximate [sic] cause.

THE COURT: Yes, you can. If that's what you wish.

....

THE COURT: ... Just taking all the fault will do it. And I'm going to take out that proximate cause. Now you make sense. I understand your situation

...