Rowe v. Munye, No. A03-465.

• Citation: 702 N.W.2d 729
• Decision Date: 18 August 2005
• Docket Number: No. A03-465.
• Parties: Cheryl ROWE, Appellant, v. Mohamed MUNYE, Respondent, Employers Insurance Company/Dakota Fire Insurance Company, Defendants.
• Court: Supreme Court of Minnesota (US)

702 N.W.2d 729

Cheryl ROWE, Appellant, v. Mohamed MUNYE, Respondent, Employers Insurance Company/Dakota Fire Insurance Company, Defendants.

No. A03-465.

Supreme Court of Minnesota.

August 18, 2005.

Michael D. Tewksbury, Darin S. Wieneke, Tewksbury, Kerfeld, Zimmer Minneapolis, MN, for Appellant.

Terrence R. Peterson, Corrine L. Evenson & Associates, St. Paul, MN, for Respondent.

William M. Hart, Damon L. Highly, Meagher & Geer, PLLP, Minneapolis, MN, for Amicus Curiae MN Defense Lawyers Ass'n.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, PAUL H., Justice.

In the case before us, we must determine whether using CIVJIG 91.40 to instruct a jury on aggravation of a preexisting injury or condition improperly shifts to the defendant the burden of apportioning a plaintiff's automobile accident injuries and her preexisting injuries. The subject of this action is an automobile accident that occurred when a vehicle driven by Mohamed Munye rear-ended Cheryl Rowe's vehicle. Claiming that she suffered injuries from this accident, Rowe sued Munye for negligence. At trial, Rowe requested CIVJIG 91.40 to instruct the jury on aggravation because she claims her injuries from the accident aggravated injuries that preexisted the accident. Munye objected, contending that CIVJIG 91.40 misstates Minnesota law and impermissibly shifts the burden of proof from Rowe to him. The Hennepin County District Court granted Rowe's request and included CIVJIG 91.40 in its instructions to the jury. The jury then awarded Rowe damages for medical expenses, pain, disability, and emotional distress. Munye moved for a new trial, arguing that CIVJIG 91.40 was an improper and prejudicial instruction. The court denied Munye's motion and he appealed. The Minnesota Court of Appeals reversed and remanded for a new trial on damages. Rowe v. Munye, 674 N.W.2d 761 (Minn.App.2004). We affirm the court of appeals.

On November 21, 1999, as appellant Cheryl Rowe was making a left turn, respondent Mohamed Munye hit her vehicle from behind with his car. Munye initially claimed that he hit Rowe only because an unidentified vehicle pushed him into Rowe's car. Rowe claimed that she suffered neck and shoulder injuries from this accident and sued Munye for negligence. Because Munye asserted that the unidentified vehicle caused the accident, Rowe also initially sued her insurance company, Employers Mutual Insurance Company/Dakota Fire Insurance Company, under the unidentified/uninsured driver terms of her policy. The district court subsequently dismissed Munye's defense with prejudice when Munye repeatedly failed to cooperate with court instructions and discovery orders. Munye eventually conceded that he "bore complete and undisputed liability" for the accident. Thus, the only issue left for the jury to decide was the issue of damages.

At trial, Rowe testified about the accident and her resulting injuries. She testified that immediately after the accident, she had a headache and a sore neck, which continued to worsen. Rowe also claimed that as a result of the accident she developed a persistent numbness in her arm and hand. She testified that chiropractic treatment from Dr. Kelly Sheehan has provided some relief from her symptoms. An MRI scan taken in April 2000 showed a herniated disc in her neck. In June 2000, neurologist Dr. Ronald Tarrel examined Rowe and told her that surgery was not necessary, but that she could continue the chiropractic treatments. Rowe continued treatments with Dr. Sheehan about once a month.

Dr. Sheehan testified that he believes Rowe suffers from permanent injuries to her neck and upper back because of the accident and will need continuing supportive care at an annual cost of approximately $1,950. He testified that while some of Rowe's x-rays show a preexisting degenerative joint disease, her back problems before the accident would not have been permanent. He did testify, however, that Rowe would have probably needed continued "maintenance" care based on her pre-accident injuries. Dr. Sheehan concluded that Rowe's injuries were both caused by and aggravated by the accident with Munye.

Neurologist Dr. Irman Altafullah, who independently examined Rowe on February 19, 2002, testified for Munye. Dr. Altafullah stated that he believes the accident did not cause Rowe to suffer from either a permanent injury or a permanent aggravation of a preexisting injury and that her degenerative back changes had developed over a long period of time. He did say, however, that he believes that the accident might have caused Rowe to suffer temporary aggravating injuries. He based his opinion on the nature of the accident, Rowe's symptoms and improvement over time, and his examination, which, he said, did not reveal any objective findings of permanent injury.

Rowe's preexisting injuries involved back, shoulder, and neck pain and headaches. For about 20 years before the accident with Munye, Rowe had periodically received chiropractic care for chronic neck and back discomfort. Her most recent visit to Dr. Sheehan was just a few days before the accident. In 1975, Rowe had been in a car accident, in which she was thrown against the windshield and broke two of her teeth. She also fell off a motorcycle in 1965. Rowe stated, however, that she suffered no lingering injuries from either of those earlier accidents. Despite her previous medical treatment for her back and neck, she testified that for a couple of weeks before the accident with Munye occurred, she had "felt really great" and "better than [she] had in a long time."

Rowe also testified that her injuries from the accident with Munye have caused her to limit her involvement in activities and that she believes her life is more limited than it was before the accident. She claimed that, since the accident, she tires more quickly and has had to significantly curtail her volunteer work. Munye tried to show that Rowe's injuries did not limit her activities and he attempted to prove that Rowe's injuries were not severe because the impact from the accident was only a jolt and it did not cause her to hit anything inside her car. Rowe requested $79,000 in damages: $6,000 for past medical expenses; $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.

Rowe requested CIVJIG 91.40 because she claimed that the accident aggravated her previous back and neck problems. 4A Minn. Dist. Judges Ass'n, Minnesota Practice, Jury Instruction Guides — Civil, CIVJIG 91.40 (4th ed. 1999 & Supp.2005).¹ She did not claim that her aggravated injuries were not apportionable from her preexisting injuries. Munye did not submit any proposed jury instructions, but just before jury deliberations, he objected to Rowe's request for CIVJIG 91.40, stating that he believed the instruction misstates Minnesota law. Munye argued that the instruction's third sentence impermissibly shifts the burden of proving Rowe's injuries to him. Instead of CIVJIG 91.40, Munye requested that the court give the now replaced 1986 CIVJIG 163 to the jury because the former instruction did not impermissibly shift the burden of proof to the defendant. 4 Minn. Dist. Judges Ass'n, Minnesota Practice, Jury Instruction Guides — Civil, CIVJIG 163 (3d ed.1986). CIVJIG 163 was the jury instruction on aggravation from the Third Edition of the civil jury instruction guide and was replaced by CIVJIG 91.40 in the Fourth Edition.

The district court granted Rowe's request and instructed the jury using the exact language of CIVJIG 91.40, only adding Rowe's and Munye's names. The court's instructions on aggravation read as follows:

There is evidence that Cheryl Rowe had a pre-existing disability or medical condition at the time of the accident.

Mohamed Munye is liable only for any damages that you find to be directly caused by the accident.

If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then Mohamed Munye is liable for all of the damages.

The jury found that Rowe had sustained a permanent injury and a 60-day disability as a result of the accident, but not medical expenses in excess of $4,000. It awarded her $24,500: $7,500 for past pain, disability, and emotional distress; $13,000 for future pain, disability, and emotional distress; and $4,000 for future health care costs and expenses. On November 14, 2002, the district court entered judgment for Rowe.

Munye moved for a new trial, claiming that the district court erred when it gave CIVJIG 91.40 because the instruction caused him prejudice. He objected to CIVJIG 91.40, arguing that it (1) misstates Minnesota law pursuant to a court of appeals decision, Blatz v. Allina Health Sys., 622 N.W.2d 376 (Minn.App.2001), rev. denied (Minn. May 16, 2001); and (2) unfairly prejudices his right to a fair trial by impermissibly shifting to him the burden of proving apportionment of damages. The court denied Munye's motions and he appealed.

The court of appeals reversed the district court, concluding that CIVJIG 91.40 "impermissibly imposes on an at-fault defendant the burden of proving that he did not cause the portion of plaintiff's damages attributable to a pre-existing disability or condition." Rowe, 674 N.W.2d at 767-68. The court went on to conclude that it could not determine whether the erroneous instruction influenced the jury in the award of damages. Id. at 770. Therefore, the court of appeals remanded for a new trial, but limited the scope of the trial to a determination of the amount of damages that Rowe sustained from the accident over and above the damages that normally would have followed from her preexisting condition. Id.

Rowe appeals to our court, contending that CIVJIG 91.40 is appropriate because it clearly and accurately states Minnesota law and ensures consistent jury instructions. Alternatively, she...