Rowe v. Munye, No. A03-465.
| Decision Date | 17 February 2004 |
| Docket Number | No. A03-465. |
| Citation | 674 N.W.2d 761 |
| Parties | Cheryl ROWE, Respondent, v. Mohamed MUNYE, Appellant, Employers Mutual Insurance Company/Dakota Fire Insurance Company, Defendants. |
| Court | Minnesota Court of Appeals |
Michael D. Tewksbury, Darin S. Wieneke, Tewksbury, Kerfeld, Zimmer, Minneapolis, MN, for respondent.
Terence R. Peterson, Scott A. Brehm & Associates, Roseville, MN, for appellant.
Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and WRIGHT, Judge.
In an action for personal injuries sustained in a car accident, Cheryl Rowe presented medical evidence of a new injury and an aggravation of a pre-existing condition. Over Mohamed Munye's objection, the district court instructed the jury, using CIVJIG 91.40, that if they were unable to separate damages caused by the pre-existing condition from the existing medical condition, then Munye would be liable for all of the damages. The jury returned a verdict for Rowe against Munye, and Munye appeals from the resulting judgment.
The district court conducted a three-day jury trial on the issue of damages sustained by Cheryl Rowe when Muhamed Munye's car struck her car from behind as she made a left turn. Munye, in his answer to Rowe's complaint, denied liability. He alleged that his car, in turn, had been struck from behind by an unidentified car that had either caused a second collision with Rowe's car or pushed his car into hers. Rowe believed that a third car, driven by a friend of Munye's might have been involved in the accident, but she was unable to ascertain the identity of this driver. Because of the alleged involvement of an unidentified car, Rowe sued her uninsured motorist carrier, Employers Mutual Ins. Co., as well as Munye.
Munye did not cooperate in the discovery process. After he failed to answer interrogatories, attend his three scheduled depositions, and appear for nonbinding arbitration, Rowe moved for summary judgment. Before the summary judgment hearing, the attorneys for all three parties reached an agreement that was stipulated on the record and incorporated into an order. The stipulation provided that if Munye again failed to appear for his rescheduled deposition, his affirmative defense alleging involvement of an uninsured driver would be stricken, Employers Mutual would be dismissed with prejudice, and the court would direct a verdict of liability against Munye, leaving only the issue of damages for trial. Munye failed to appear for his rescheduled deposition, and on his attorney's motion, the district court implemented the stipulated order.
At the jury trial on damages, Rowe testified that when Munye's car struck her car from behind, she was wearing a seatbelt. The force of the collision propelled her forward, but the seatbelt restrained her from striking any part of the car. Immediately after the accident she had a headache, and her neck was sore. The next day, she saw her chiropractor, Dr. Kelly Sheehan, who took x-rays, manipulated her spine, and applied traction. Rowe had experienced generalized pain in her neck, shoulders, and lower back over a period of years. The pain did not appear to be connected with any significant injuries to her back or neck but had required periodic appointments with chiropractors. She had begun receiving treatment from Sheehan three times a week beginning two months before the accident. About five months after the accident, an MRI showed that Rowe had a posterior disc herniation at C5 and C6 with mild posterior annular bulging at the C6-C7 level. Rowe continued treatment with Sheehan.
Two medical experts provided testimony at trial through videotaped depositions. Sheehan presented opinion evidence that Rowe suffered a permanent injury to the soft tissues of her neck and back as a result of the accident. He also testified that Rowe had degenerative neck problems before the accident. When asked whether Rowe's injuries were caused by the accident or aggravated by the accident, he testified:
Munye presented the videotaped deposition of Dr. Irman Altafullah, a consulting neurologist, who performed an independent medical examination. Altafullah testified that his physical examination showed that Rowe had a good range of motion in her neck and that the MRI revealed no pinched nerve in the neck that could account for Rowe's report of numbness in her right hand. He stated that as a result of the accident, Rowe may have suffered neck sprain or whiplash and also a lower back sprain. Based on Rowe's medical information, Altafullah believed "that this whiplash or sprain ... was superimposed... on ... a history of [Rowe's] longstanding neck, mid, and lower back pain." He concluded that Rowe had not sustained permanent aggravation or injury as a result of the accident. The record also contains the results of an examination by Dr. Ronald Tarrel, a consulting neurologist, who reported that Rowe developed increased soreness and headaches after the accident.
Rowe claimed that her damages attributable to the accident totaled $79,000. This amount included $6,000 for past medical damages; $15,000 for past pain, disability, and emotional distress; $52,000 for future pain, disability, and emotional distress; and $6,000 for future medical expenses.
At the close of trial, Rowe submitted proposed jury instructions, including CIVJIG 91.40. Munye's attorney objected to instructing the jury using CIVJIG 91.40. He contended that the last line of the instruction impermissibly shifted the burden of proving damages to Munye. The district court overruled the objection, concluding that CIVJIG 91.40 applied when the facts establish a pre-existing medical condition. In conformance with CIVJIG 91.40, the court instructed the jury:
By special verdict, the jury found that Rowe sustained a permanent disability as a result of the accident but did not incur medical expenses in excess of $4,000. The verdict provided $7,500 in damages for past pain, disability, and emotional distress; $13,000 for future pain, disability, and emotional distress; and $4,000 for future health care costs or expenses. The district court entered judgment for Rowe against Munye in the amount of $27,331.72, including costs and prejudgment interest.
Munye moved for a new trial, arguing that CIVJIG 91.40 misstates Minnesota law resulting in substantial prejudice to him. The district court denied the motion, and Munye appeals.
Did prejudicial error result from the district court's instruction to the jury, in a case that involved a claim of damages for both new and pre-existing injuries, that if they could not separate damages caused by the pre-existing disability or medical condition from those caused by the accident, defendant was liable for all of the damages?
We have twice before addressed the question of whether the jury instruction for aggravation of personal damage provided in CIVJIG 91.40 misstates Minnesota law when it advises judges to instruct the jury that "[i]f you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then [the defendant] is liable for all the damages."
In Blatz v. Allina Health Sys., 622 N.W.2d 376 (Minn.App.2001), review denied , we held that when applied to apportion damages between the aggravation of a pre-existing medical condition and new injuries attributable to an at-fault defendant, CIVJIG 91.40 misstates Minnesota case law and impermissibly extends the single indivisible injury rule to circumstances that do not involve joint and several liability. Id. at 391-92. We reaffirmed this analysis in Morlock v. St. Paul Guardian Ins. Co., 632 N.W.2d 268, 271-72 (Minn.App.2001), rev'd 650 N.W.2d 154 (Minn.2002) ().
On review, the supreme court concluded that the district court in Morlock had erred by giving a jury instruction based on CIVJIG 91.40 when neither party had argued for aggravation damages, but held that the error was not prejudicial. Morlock, 650 N.W.2d at 162. Although the court withheld a final determination on the propriety of CIVJIG 91.40, the court stated that "it may be possible that CIVJIG 91.40 could be inappropriate in a situation where a plaintiff is seeking both `new' damages and damages for an aggravation of an admitted to preexisting condition." Id. at 161. In evaluating whether the first two sentences of CIVJIG 91.40 are consistent with Minnesota law, the court used as its touchstone its holdings in Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 58 N.W.2d 561 (1953) and Schore v. Mueller, 290 Minn. 186, 186 N.W.2d 699 (1971). See Morlock, 650 N.W.2d at 160
.
These statements are consistent with our holding in Blatz. Blatz distinguished between only one at-fault defendant's liability for aggravation of a pre-existing condition or disability as described in Nelson and Schore and more than one at-fault defendants' liability for tortious conduct that combines to harm the plaintiff described in Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970). Blatz, 622 N.W.2d at 390-92.
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