School Dist. No. 11 v. Sverdrup & Parcel and Associates, Inc., 85-1735

• Citation: 797 F.2d 651
• Decision Date: 24 July 1986
• Docket Number: No. 85-1735,85-1735
• Parties: 34 Ed. Law Rep. 30 SCHOOL DISTRICT NO. 11 a/k/a South Sioux City Schools, Dakota County, Nebraska, Plaintiff-Appellee, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 651

797 F.2d 651

34 Ed. Law Rep. 30

SCHOOL DISTRICT NO. 11 a/k/a South Sioux City Schools, Dakota County, Nebraska, Plaintiff-Appellee, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., Defendant-Appellant.

No. 85-1735.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 10, 1986.

Decided July 24, 1986.

Dean F. Suing, Omaha, Neb., for defendant-appellant.

Thomas C. Lauritson, Omaha, Neb., for plaintiff-appellee.

Before ARNOLD and FAGG, Circuit Judges, and OLIVER, ^* Senior District Judge.

PER CURIAM.

I.

The School District of South Sioux City, Nebraska filed this diversity action against Sverdrup & Parcel and Associates, Inc. (S & P), Western Waterproofing Company (WWC), and Minnesota Mining and Manufacturing Company (3M) on December 17, 1982. The case involves a re-roofing contract for the Senior High School, the E.N. Swett Elementary School and the Lewis and Clark elementary schools were constructed in 1960. The high school was constructed in 1968. As a result of leaks in the roofs of all three schools in 1978, the School District employed S & P to determine the cause of the leaks and to propose solutions for correction of the problems.

After preliminary reports and discussions S & P and the School District entered into a contract under which S & P was to "engineer, design, and supervise repairs to these roofs which will effect a long-time solution to said leakages." Minnesota Mining and Manufacturing Company (3M) materials were used and labor was provided by WWC.

On the morning trial was to commence, 3M and the School District announced a settlement of its claims against 3M for $150,000. During the course of the trial the School District's claims against WWC were settled in accordance with a stipulation of settlement which we later discuss in some detail. The case went forward against S & P as the sole defendant.

The jury returned a verdict against S & P in the amount of $573,606 in regard to the Senior High School and for $191,202 in regard to two elementary schools. The district court granted in part a post-trial motion for remittitur in the amount of the $150,000 3M settlement. The district court, however, refused to grant any remittitur in regard to the WWC settlement. Judgment for $806,010 was therefore entered against S & P.

Appellant S & P contends on appeal that (1) the verdict and judgment rendered by the district court is not supported by evidence for the reason that there is no competent testimony as to the standard of care of an architect or proof as to amount of damages sustained; (2) the verdict rendered by the jury in the trial court is excessive for the reasons that it includes speculative damages and damages for mental suffering which are not recoverable in Nebraska; (3) the trial court abused its discretion in denying defendant's motion for a new trial or, alternatively, in not ordering a remittitur in the amount of the School District's beneficial use to date; and (4) the trial court abused its discretion in denying defendant's motion for a new trial or, alternatively, in not ordering a remittitur in the amount of the School District's settlement with WWC.

We conclude that the district court should be affirmed on all issues except the fourth issue stated. In regard to that issue, we conclude that the case should be remanded with direction that the district court direct the entry of a judgment that will reduce plaintiff's judgment in the amount of $85,000 to reflect the School District's settlement with WWC.

II.

Appellant argues in support of the first issue it raised on appeal that Jennings, as an engineer, was not qualified to offer an opinion in regard to the performance of an architect, and that the district court erred in overruling appellant's objections to his testimony. Appellant therefore argues that appellee failed to prove that S & P breached the standard of care of an architect.

Dwight Jennings, a civil engineer, testified as an expert witness for the plaintiff over appellant's repeated objections. Jennings is the founder and president of an independent engineering company which does consulting work related to roofing and waterproofing exclusively. Jennings testified that for over twenty years he has been "actively involved in investigating roofing problems, looking at different kinds of products, evaluating quality of control on new construction and reroofing ... reroofing design, designing systems for correcting problems or restoring roofs to better life." (Tr. 457).

Jennings inspected and tested all the roofs before testifying. He testified as to what he considered were various design defects and construction deformities in all three of the school roofs. He further testified that in his opinion, the problems should have been observable by an architect or engineer inspecting the work at the time of installation and that the products designed and specified by S & P were not suitable. He further testified that the roofing design of S & P did not meet the standard of an average competent architect or engineer in the area in 1979.

Jennings also testified at length concerning damages to the School District. The total of damages he detailed was $1,082,000. He testified and provided charts on the various materials, labor, design fees, and other components to the award.

Appellant cites Bartak v. Bell-Galyardt and Wells, Inc., 629 F.2d 523 (8th Cir.1980), and Overland Constructors v. Millard School Dist., 220 Neb. 220, 369 N.W.2d 69 (1985), to support its argument that only an architect, rather than an engineer, should be permitted to testify as to the standard of an average competent architect. Appellant's argument is untenable. For both those cases simply hold that an expert witness, rather than lay persons, must be called to support a plaintiff's claim in cases which involve highly technical architectural requirements. Both Bartak and Overland Constructors involved cases in which no expert witness was called by the plaintiff.

In this case, the School District called a civil engineer with a great deal of experience in roofing as its expert witness. His specialized knowledge assisted the trier of fact to understand the evidence and to determine facts in issue. We conclude that the district court committed no error when it admitted Jennings' testimony in evidence. Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 672 (8th Cir.1985). The district court is therefore affirmed in regard to the first issue presented on appeal.

III.

Appellant argues in support of its second issue raised on appeal that the verdict of the jury was excessive in that it was neither supported by nor did it conform to the evidence; that the damages, if any, were a simple matter of mathematical computation; that the jury was allegedly permitted to assess damages for pain and suffering; and that in any event the evidence adduced at trial did not support the verdict. Appellant relies primarily on Glenwood Irrigation Company v. Vallery, 248 Fed. 483 (8th Cir.1918); Mutual Benefit Health and Accident Association v. Thomas, 123 F.2d 353, 356 (8th Cir.1941); Northern v. McGraw-Edison Co., 542 F.2d 1336, 1349 (8th Cir.1976); and Stineman v. Fontbonne College, 664 F.2d 1082 (8th Cir.1981) together with a number of Nebraska cases which need not be cited.

We conclude that appellant's argument in support of the second issue raised by it on appeal is untenable. A jury verdict may not be overturned for insufficient evidence unless it is clearly contrary to the evidence. LeSueur Creamery, Inc. v. Haskon, Inc., 660 F.2d 342, 353 (8th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 138. A verdict may not be considered to be excessive unless there has been a "plain injustice" or a "monstrous" or "shocking" result. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-8 (8th Cir.1961).

The jury returned a total verdict of $956,010 for damages for all three schools. Appellee adduced testimony that the total damage to all three buildings was $1,082,000. The fact that the jury returned special verdicts that were not precisely equivalent to the testimony of appellee's expert witness is immaterial. The instructions requested by the parties and those given by the district court treated the question of damages as a whole. The forms of special verdict submitted for the jury's use, without objection by either side (Tr. 554 and 555), did require a breakdown of the damages for each of the three buildings individually. The district court concluded, and we agree, that the total award was fully supported by the evidence.

Appellant further argued that the testimony of appellee's expert in regard to a $90,000 contingency expense component was speculative. We disagree. The law does not require mathematical precision in proof of a loss; proof to a reasonable certainty is sufficient. LeSueur Creamery, supra, 660 F.2d at 349-50; Pillsbury Co. v. Illinois Central Gulf R.R., 687 F.2d 241, 246 (8th Cir.1982). The difficulty of proving a precise amount will not preclude recovery as long as there is a reasonable basis to approximate the amount. LeSueur Creamery, supra, 660 F.2d at 351.

The expert witness testified about the contingency expense at length on both direct and cross-examination. The jury was fully advised of all of the elements of the damages claimed and could calculate a suitable award accordingly. Appellant did not propose any alternative method of calculating damages. We conclude that such testimony was not speculative and that appellant's argument is untenable.

Appellant's additional argument in regard to Instruction No. 13 in support of the second issue deserves little comment. One portion of that instruction, in accordance with a request joined in by appellant, instructed the jury that it was entitled to consider any inconvenience or disruption that the school...