Schaub v. Wilson

CourtUnited States State Supreme Court of Wyoming
Citation969 P.2d 552
Docket NumberNos. 96-159,96-268,s. 96-159
PartiesKaren L. SCHAUB, Appellant (Plaintiff), v. Michael A. WILSON, Appellee (Defendant). (Two cases)
Decision Date21 December 1998

Page 552

969 P.2d 552
Karen L. SCHAUB, Appellant (Plaintiff),
Michael A. WILSON, Appellee (Defendant). (Two cases)
Nos. 96-159, 96-268.
Supreme Court of Wyoming.
Dec. 21, 1998.

Page 553

Eric M. Alden, Wheatland, Wyoming, for Appellant.

Peter S. Dusbabek of Montgomery, Kolodny, Amatuzio, Dusbabek & Parker, L.L.P., Ft. Collins, Colorado, for Appellee.


THOMAS, Justice.

The major issue to be resolved in this case addresses the scope of the hearing on damages conducted by the trial court pursuant to W.R.C.P. 55(b)(2) in a personal injury action after the entry of default pursuant to W.R.C.P. 55(a). Collateral issues are raised concerning the burden of proof of pre-existing conditions and the validity of the findings of fact made by the trial court. After conducting the hearing on damages, the trial court ruled that Karen L. Schaub (Schaub) had failed to establish that her claimed damages were caused by the automobile collision, which was the subject of her action against Michael A. Wilson (Wilson), and the trial court denied any recovery to Schaub. The trial court also assessed costs against Schaub, and that ruling is the subject of a consolidated appeal. We hold that no error

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occurred in the determination of the trial court that the injuries for which damages were sought were not caused by the collision that led to the filing of this case, and that the trial court did not abuse its discretion in awarding costs to Wilson. The Judgment and Order in favor of Wilson and the Judgment that awarded the costs to Wilson are affirmed.

In the primary appeal, Case No. 96-159, the following issues are set forth in the Appellant's Brief, filed on behalf of Schaub:

1. Does the Court's holding in McGarvin-Moberly apply to default cases against single defendants?

2. To what extent does an entry of default under Rule 55(a) determine the issue of causation?

3. Did the trial Court misapply the burden of proof on pre-existing conditions?

4. Were the District Court's findings of fact clearly erroneous?

In the Brief of Appellee in that case, the issues are stated in this way:

1. Was the Trial Court correct in determining that the issue before it was to determine the damage, if any, suffered by Mrs. Schaub as a result of the accident involving Mr. Wilson.

2. Was the Trial Court correct in determining that Mrs. Schaub had the burden to prove the damages [were] proximately caused as a result of the accident involving Mr. Wilson.

3. Was the Trial Court's factual finding that Mrs. Schaub had not met her burden of proof clearly erroneous.

In the consolidated case, Case No. 96-268, the issue stated in the Appellant's Brief, filed on behalf of Schaub is:

1. Did the Trial Court err in awarding costs in favor of a defaulted defendant?

In the Brief of Appellee, filed on behalf of Wilson in that case, the issue is restated as:

Did the Trial Court abuse its discretion in awarding costs for the Defendant Michael Wilson?

On February 24, 1995, Schaub filed a Complaint alleging negligence on the part of Wilson in driving a motor vehicle so that it struck Schaub's vehicle from the rear. Schaub alleged as damages injuries to her neck and property damage to her vehicle. She sought to recover compensation for her injuries, medical bills, repairs to her vehicle, and costs. Service was perfected upon Wilson on February 26, 1995, and there followed negotiations of settlement between Schaub and Wilson's insurance carrier. Ultimately, counsel for Schaub wrote to the insurance company representative stating, "If I have not heard from you by May 5, 1995, I will proceed on the assumption that you are not going to respond." When no answer or other responsive pleading had been filed by May 8, 1995, Schaub sought and secured an entry of default pursuant to W.R.C.P. 55(a).

The next day, an Answer was filed by Wilson, and on May 18, 1995, Wilson presented a Motion to Set Aside Default Judgment. In the decision letter with respect to setting aside the default, the trial judge reviewed the chronology of the case and considered the motion as one to set aside a default since no default judgment had been entered. The trial court ruled that Wilson had not shown good cause to set aside the default in that culpable conduct of Wilson led to the default and Wilson had not shown a meritorious defense. In the decision letter, the trial judge asked counsel to review McGarvin-Moberly Const. Co. v. Welden, 897 P.2d 1310 (Wyo.1995), for the analysis of the role of a defaulted defendant in the determination of damages. Subsequently, after what the trial court called a trial (presumably the hearing to determine the amount of damages provided in W.R.C.P. 55(b)(2)), the trial court ruled that Schaub's injuries were not proximately caused by the collision, and found generally in favor of Wilson and against Schaub. The decision letter was followed by a Judgment and Order in favor of Wilson and requiring him to submit his Bill of Costs promptly. Schaub appealed from the Judgment and Order. The trial court then entered a Judgment awarding costs to Wilson, and that was followed by a second appeal by Schaub, which has been consolidated with the initial appeal.

We turn to the decision letter of the district court to summarize the facts as found

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by the trial judge and his rulings as to the issue of damages:

Background of the Case

This is a negligence action involving a minor traffic accident that occurred on July 19, 1991. The Plaintiff's vehicle was stopped at a yield sign, waiting to enter into an intersection when the Defendant's vehicle, approaching from behind at approximately five to ten miles per hour, bumped into the Plaintiff's vehicle. Neither vehicle was damaged. However, the Plaintiff suffers from certain neck injuries, which she alleges were made worse by the accident. She seeks recompense from the Plaintiff for medical bills, pain and suffering, lost wages, and homemaking expenses, past and future.

A procedural quirk in the case is the fact that default has been entered against the Defendant, which default the Court has refused to set aside. Consequently, the liability issue has been determined, and the only question before the Court is the amount of damages, if any, to be awarded.


The material facts of this case revolve around the Plaintiff's physical health and condition before and after the accident involving the Defendant. The Plaintiff's relevant medical history includes the following events:

1. In 1967, she was in a very serious motor vehicle roll-over accident. She was thrown through the windshield, and suffered head injuries, a concussion, a cervical spine fracture, shoulder blade fractures and collar bone fractures.

2. In 1972, she fell down a flight of stairs, fracturing an ankle.

3. In 1980, she was in another vehicle roll-over accident, from which she suffered bruised back muscles.

4. In 1981, she had arthroscopic knee surgery.

5. In 1982, she fell while roller skating, later experiencing back pain.

6. In 1982, she "turned to look at a child" and suffered a "burning sensation" in her neck, with pain radiating into her arm and into the area between her shoulder blades.

7. In 1983, she received medical treatment for continuing neck problems.

8. In 1986, she consulted Dr. Sherard for continuing neck pain, and was diagnosed as suffering from cervical spine disease, a chronic degenerative process.

9. In December, 1990, during a family dispute, she was thrown into a chair, which tipped over with her, causing her to suffer a hyper-extended neck. Resulting muscle spasms were treated with anti-inflammatory drugs, and when the pain did not subside, she began a course of physical therapy in March, 1991. She described "constant pain" resulting from this incident.

10. In March, 1991, she hurt her neck while cleaning her oven. She again complained to her physical therapist of severe neck pain.

11. In April, 1991, she tripped in her backyard, hitting her face on a fence and again suffering severe neck and back pain, for which she again sought physical therapy.

12. In July, 1991, she was involved in the above-described accident with the Defendant. She immediately complained of neck pain and went to the hospital emergency room. Cervical x-rays taken that day showed no signs of acute traumatic injury, but did show signs of chronic arthritic-type degenerative changes.

13. In March, 1992, she sought treatment from Dr. Shafer, a neurologist, for her persistent back, leg and rib pain.

14. In July, 1992, she was referred to Dr. Curnow and Dr. Southwell, who are orthopedic surgeons. Dr. Southwell performed a bi-level disc fusion. Specifically, he found bony spurs and a narrowed disc space at C5-6, and a herniated disc at C6-7.

15. In February, 1993, she had a second neck surgery because one of the bone fusions from the first surgery failed.

16. In September, 1993, while standing up from a booth at a restaurant, she struck her head on the light over the booth, which

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resulted in a "minor jar" and neck muscle spasms.

17. In August, 1994, while entering another restaurant, she tripped, "became airborne" and struck her head on a glass door hard enough to crack the glass. She was severely injured by this fall, again suffering neck pain, and eventually having lower back surgery (June, 1995) and ankle surgery (September, 1995).

18. Finally, Dr. Southwell testified that he has also treated the Plaintiff for bilateral tennis elbow and carpal tunnel syndrome.

It is significant that, in addition to these specific events, the Plaintiff repeatedly sought out and obtained medical treatment for chronic neck pain for many years before the accident with the Defendant.


The question for the Court is what damage, if any, was suffered by the Plaintiff as a result of the accident involving the Defendant. In the peculiar context of this case (the...

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