Vanover v. Kansas City Life Ins. Co.
| Decision Date | 03 September 1996 |
| Docket Number | No. 960002,960002 |
| Citation | 553 N.W.2d 192 |
| Parties | 132 Lab.Cas. P 58,176, 12 IER Cases 43 Edward D. VANOVER, Plaintiff, Appellant and Cross-Appellee, v. KANSAS CITY LIFE INSURANCE COMPANY, a corporation, and James B. Slusher, Defendants, Appellees and Cross-Appellants. Civil |
| Court | North Dakota Supreme Court |
Ralph A. Vinje (argued), of Vinje Law Firm, Bismarck, for plaintiff, appellant and cross-appellee. Appearance by Edward D. Vanover.
Lyle W. Kirmis (argued), of Zuger Kirmis & Smith, Bismarck, for defendants, appellees and cross-appellants. Appearance by Lawrence A. Dopson.
Edward D. Vanover has appealed a district court amended judgment for $250 in his suit against Kansas City Life Insurance Company (Kansas City) and James B. Slusher, its associate general counsel. Kansas City and Slusher cross-appealed the amended judgment and the trial court's order denying their motion for judgment as a matter of law under Rule 50(b), N.D.R.Civ.P., or, alternatively, for a new trial under Rule 59, N.D.R.Civ.P. We modify the judgment and affirm.
Vanover was a general agent for Kansas City and for Armour Life Insurance Company (Armour), a subsidiary of Kansas City, until terminated in 1983, after Vanover and Armour got into a dispute over unpaid commissions. After Vanover indicated he was going to sue Armour for the unpaid commissions, Armour terminated its relationship with Vanover. Kansas City soon terminated Vanover, as well. Vanover then became an agent for Globe Life and Accident Insurance Company (Globe) and American Health and Life Insurance Company (American). Vanover sued Armour for unpaid commissions and sued Kansas City for wrongful termination. On March 25, 1986, Vanover sent letters to a number of Kansas City agents and included parts of a deposition of Joseph R. Bixby, then President of Kansas City, taken during discovery proceedings in Vanover's suits against Armour and Kansas City. On April 7, April 9, and April 22, 1986, Slusher sent letters to all Kansas City general agents, to American, and to Globe, respectively, stating Vanover had been terminated "for cause." Vanover was terminated by Globe and American shortly after they received those letters.
In 1987, Vanover sued Kansas City and Slusher (collectively referred to as Kansas City) for defamation, alleging Kansas City had made unprivileged and false statements by letter and telephone that he had been terminated "for cause." The trial court granted Kansas City's motion for summary judgment. This court reversed the summary judgment and remanded for further proceedings for the trial court to "determine if the statements that Vanover was 'terminated for cause' are reasonably susceptible of a defamatory construction." Vanover v. Kansas City Life Ins. Co., 438 N.W.2d 524, 527 (N.D.1989).
On remand, the case was tried to a jury, which returned a verdict finding Vanover had been libeled and slandered and awarding him damages of $1,000,250. Kansas City moved for judgment notwithstanding the verdict or for a new trial. The trial court concluded it had erred in using a verdict form that did not separate the jury's findings of fact on each of the three allegedly defamatory publications, and granted the motion for a new trial. The trial court granted a request for certification under Rule 54(b), N.D.R.Civ.P., ruling there was no just reason to delay entry of final judgment. Vanover appealed from the order granting a new trial. Kansas City cross-appealed from the trial court's implicit denial of its motion for judgment notwithstanding the verdict. This court concluded that "the trial court abused its discretion in granting a Rule 54(b) certification," and dismissed the appeal and cross-appeal. Vanover v. Kansas City Life Ins. Co., 535 N.W.2d 424, 427 (N.D.1995).
At the new trial, the jury returned a verdict finding the statements in the letters to all Kansas City general agents, to Globe, and to American, that Vanover had been terminated for cause were defamatory; that the defendants knew the statements were false or probably false; that some persons to whom each of the letters were sent understood the statement to be defamatory and that Vanover's reputation was damaged in their eyes; and that the defendants made the statements with malice. The jury awarded Vanover damages. Judgment was entered against Kansas City for $1,900,250, with interest at 12 percent per year. 1 Kansas City moved to correct the judgment. The trial court ordered the judgment amended to award Vanover damages of only $250. Judgment was entered accordingly. Vanover appealed and Kansas City cross-appealed.
Vanover contends the trial court erred in vacating the jury verdict returned in the first trial and ordering a new trial. A trial court's order granting a new trial will not be disturbed on appeal unless there was an abuse of discretion, which occurs if the trial court acts unreasonably, arbitrarily, or unconscionably. Delzer v. United Bank, 527 N.W.2d 650 (N.D.1995); Okken v. Okken, 325 N.W.2d 264 (N.D.1982). Because "the granting of a new trial merely results in the trial of the case to another jury," instead of ending the case, "we require a strong showing that the trial court abused its discretion." Okken at 269. "[I]t is rare that the appellate court is justified in preventing such a new trial." Lange v. Cusey, 379 N.W.2d 775, 777 (N.D.1985). "We will thus uphold the granting of a new trial even though the trial court would have been justified in reaching a different conclusion, and even though we might have deemed a different conclusion the better one." Id.
In vacating the first jury verdict and ordering a new trial, the trial court ruled that it had committed a gross error in submitting its verdict form to the jury, because it did not differentiate which, or if all, publications were defamatory, unprivileged, damaging, or done maliciously. Vanover argues there was only one publication, to numerous recipients, and only one defamation, so only one finding of damages, other than exemplary, was necessary to support the verdict. He also argues the jury found all elements of defamation as to each class of recipients. We disagree. There were three letters constituting three publications to three groups of people. The special verdict form allowed the jury to determine the damages arising from each letter without first finding if each letter met all of the requirements of defamation, as the court instructed. We are not persuaded the trial court abused its discretion in vacating the first verdict and ordering a new trial.
In its memorandum opinion amending the judgment to award only $250 to Vanover after the second trial, the trial court noted the jury had made the following damage awards for Kansas City's letters to its agents, American, and Globe:
"1. To Kansas City Life Agents
Special damages -- $ 0.00
Compensatory damages -- $ 150,000.00
Exemplary damages -- $ 150,000.00
"2. To American Health and Life
Special damages -- $ 250.00
Compensatory damages -- $ 0.00
Exemplary damages -- $ 250,000.00
"3. To Globe Life and Accident
Special damages -- $ 500,000.00
(consisting of lost profits) -- $ 500,000.00
Compensatory damages -- $ 50,000.00
Exemplary damages -- $ 300,000.00
--------------
$1,900,250.00"
The trial court ruled:
Counsel for Slusher and Kansas City conceded at oral argument that the trial court erred in ruling that special damages are not compensatory damages. We agree. Special damages are a type of compensatory damages.
Damages is a compensation in money for detriment caused by another's act or omission. Section 32-03-01, N.D.C.C. There are three broad categories of damages --- nominal damages, punitive damages, and compensatory damages, which compensate for pecuniary loss, such as out-of-pocket expenses, economic loss, such as lost income, and physical and mental suffering. Marylin Minzer, et al., Damages in Tort Actions § 1.01 (1996). "Compensatory damages ... often ... called 'actual damages' ... seek[ ] ... to restore the plaintiff to his position prior to the tortious act, insofar as money damages may do so." Id., § 1.01. Compensatory damages "may include both 'general' damages--'damages for a harm so frequently resulting from the tort that is the basis of the action that the existence of the damages is normally to be anticipated...
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