This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1657

 

 

Rebecca Rankin,

Appellant,

 

vs.

 

Mid-Century Insurance Company,

Respondent.

 

 

Filed May 15, 2001

Reversed and remanded

Hanson, Judge

 

St. Louis County District Court

File No. C5-99-600-387

 

 

James W. Balmer, Falsani, Blamer, Peterson & Quinn, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant) 

 

Robert E. Mathias, Mathias Law Office, 724 East Superior Street, Duluth, MN 55802 (for respondent)

 

            Considered and decided by Hanson, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

HANSON, Judge

 

In this underinsured motorist claim, appellant contends that the jury's special verdict finding that she sustained future damages cannot be reconciled with the finding that she did not suffer permanent injury.  Appellant argues that the trial court erred in denying her motion for judgment notwithstanding the verdict, or in the alternative, a new trial.  Because under the facts presented, the finding of no permanent injury is irreconcilable with the award of substantial future medical costs, we reverse.

FACTS

            Appellant Rebecca Rankin was involved in an automobile accident on February 19, 1994.  In a previous lawsuit, Rankin settled a tort claim with the other driver involved in the accident.  Rankin then brought this underinsured motorist claim against respondent Mid-Century Insurance Company.

            In the motor vehicle accident, Rankin’s left knee was rammed into the light switch of her car’s dashboard.  From that time on, Rankin has experienced pain in her left knee and thigh.  When the pain and discomfort persisted, Rankin’s doctor referred her to Dr. Gibbons, an orthopedic surgeon.  Dr. Gibbons concluded that Rankin’s pain was actually due to the previously undiagnosed post-traumatic arthritis in her left hip.  Dr. Gibbons theorized that the impact on Rankin’s knee during the accident transmitted force up the thigh into the hip joint, causing injury to the hip.

            The trial court directed a verdict in favor of Rankin on the issue of liability.  Thus, the only issues before the jury were whether the accident was the direct cause of Rankin’s hip condition, the amount of Rankin’s damages and whether Rankin’s injury was permanent.  Permanent injury is one of the threshold requirements for suit under the No-Fault Automobile Insurance Act, Minn. Stat. § 65B.51, subd. 3(b)(2) (2000), and was the only threshold question submitted to the jury.  See Johnson v. State Farm Mut. Auto Ins. Co., 574 N.W.2d 468, 472 (Minn. App. 1998) (finding that insured who failed to show she suffered a permanent injury could not recover damages for non-economic detriment from her uninsured motorist insurer). 

            The jury answered three special verdict questions:  (1) It awarded damages for past pain, disability and emotional distress, “as a result of the * * * accident,” in the amount of $6,500 (past health care expenses had been stipulated in the amount of $3,277.83);  (2) It awarded future pain, disability and emotional distress damages in the amount of $11,000 and future health care expenses in the amount of $50,000, finding each to be “as a result of the * * * accident;” and (3) It found that Rankin had not suffered a permanent injury “as a result of the * * * accident.”  Based upon this special verdict, the trial court determined that Rankin had failed to satisfy the no-fault threshold requirement and ordered the entry of judgment in favor of respondent Mid-Century Insurance Company.

Rankin filed a motion for judgment notwithstanding the jury’s special verdict under Minn. R. Civ. P. 50.02(a) or, in the alternative, for a new trial under Minn. R. Civ. P. 59.01(g).  The trial court denied both motions, finding that the evidence supported the jury’s answer to each question and that its answers were not inconsistent.  Rankin appealed.

D E C I S I O N

            Rankin argues that the jury’s verdict is inconsistent; that the jury’s finding of future damages in the amount of $61,000 is inconsistent with its finding that she did not sustain a permanent injury as a result of the automobile accident.  Further, Rankin argues that the evidence was insufficient to support the jury finding that her injury was not permanent.

On review, this court will not set aside a verdict “unless it is ‘manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.’”  Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quoting Roemer v. Martin, 440 N.W.2d 122, 124 (Minn. 1989)).  The court must reconcile the special verdict answers in a “reasonable manner consistent with the evidence and its fair inferences.”  Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967) (citations omitted).  If this court can reconcile the verdict on any theory, the verdict must stand.  Id. 

Findings of a jury under a special verdict are binding on the court.  Orwick v. Belshan, 304 Minn. 338, 343, 231 N.W.2d 90, 94 (1975).  However, the court has authority to change an answer to a question in a special verdict where the evidence requires the change as a matter of law.  Id.  If the special verdict answers are inconsistent, but there is not sufficient evidence to determine that the answers to the questions should be changed as a matter of law, the proper remedy is to remand the case for a new trial.  See Carufel v. Steven, 293 N.W.2d 47, 49 (Minn. 1980) (where that jury’s findings were inconsistent, but the evidence was not sufficient to change the answer to either special verdict question as a matter of law, the case was remanded for a new trial).

            The trial court held that the jury’s findings could be reconciled with the evidence, stating that “[t]he jury could find that [Rankin] was entitled to future medical expenses but did not sustain a permanent injury.”  No further elaboration was provided.

The evidence was conclusive that Rankin’s condition was permanent.  Rankin’s expert, Dr. Gibbons, stated that Rankin will most likely feel the effects of her hip condition throughout her lifetime; that she will likely require a hip replacement in 10 to 20 years; and, because the longevity of a hip replacement is 10 to 15 years, she will most likely require a second hip replacement sometime in her lifetime.  He testified that while these procedures will decrease Rankin’s pain and increase her activity, she will likely always experience some limitations:  “She can’t return to sports.  There’s certain positions she can’t get involved in.  She can’t run * * * .”

Respondent called two expert witnesses, Dr. Jack Bert and Dr. Douglas Becker.  Each agreed that Rankin had a hip problem.  In fact, defendant conceded in closing argument:

And there’s no doubt that she has hip problems either.  All three medical doctors who testified in this case have proven that point.  She has a degenerative condition in her hip that will get worse as time goes by and may eventually require some sort of orthoplasty or hip replacement.

 

Dr. Becker agreed that Rankin might eventually need total hip replacement and, until that occurs, she would suffer limitations in her daily activities, with daily pain and stiffness. 

While all witnesses agreed that Rankin’s hip condition was permanent, Drs. Becker and Bert opined that Rankin did not have a permanent injury as a result of the accident because they each were of the opinion that there was no causal relationship between the accident and Rankin’s degenerative hip.  In other words, they did not opine that Rankin’s hip condition was not permanent, but that the accident did not cause the hip condition and, thus, did not cause a permanent injury.

            Notably, no medical witness testified that the effects of the accident on the hip condition were or could be temporary.  Dr. Gibbons said the accident caused the condition and it would be permanent, while Drs. Bert and Becker simply said the accident did not cause the condition.  Thus, the question of permanency actually turned, under this testimony, on the question of causation.  If the accident caused the hip condition, it would have caused a permanent injury as a matter of law because the hip condition was recognized as permanent.  If the accident did not cause the hip condition, it would not have caused a permanent injury because Rankin did not have any other injury that she claimed to be permanent. 

            Likewise, Rankin did not claim any other condition that could have supported the jury finding of future damages in excess of $60,000.  Dr. Gibbons had estimated the cost of two hip replacements, over Rankin’s life, at $50,000.  The only future damages claimed by Rankin were those related to her hip condition.

            We turn, then, to causation.  The trial court did not submit a separate question on causation to the jury, but built the issue of causation into the two damage questions, asking the jury to determine what damages Rankin experienced “as a result of the * * * accident.”  Accordingly, we must conclude from the jury’s answers to the two damage questions that it determined that the accident caused the hip condition.  Given that conclusion, there is no evidence from which the jury could conclude that the hip condition was not permanent.  Respondent’s arguments as to how the jury’s answers can be reconciled are inappropriately premised either on the jury believing Drs. Bert and Becker on causation (which we must conclude the jury did not do) or on the jury making a supposition for which there was no evidence (i.e., the accident aggravated the hip, but only on a temporary basis, the hip would gradually improve or the condition would be rectified by surgery).[1]

            This case is thus similar to, and our decision is controlled by, Carufel v. Steven, 293 N.W.2d 47 (Minn. 1980).  In that personal injury action, the supreme court determined that a special verdict finding of no permanent injury could not be reconciled with an award of $25,000 for general damages.  Id. at 48.  As here, the medical testimony was in conflict as to whether the plaintiff’s future problems were causally related to the accident.  Id.  That case is actually less compelling because the damage finding was not specifically tied to future medical expenses and there was conflicting testimony as to whether any of plaintiff’s physical conditions were permanent.  Id.  Here, the jury specifically found future medical expenses of $50,000, which ties directly to the estimated cost for two hip replacements over Rankin’s life, and all experts agreed that her hip condition was permanent.

            In Carufel, the court remanded for a new trial because the evidence was not sufficient to compel the answer to either question as a matter of law.  Id. at 49.  Here, given the jury’s decision that Rankin’s hip condition was “a result of the * * * accident,” the evidence compels the answer that Rankin did sustain a permanent injury (the hip condition) “as a result of the * * * accident.”  Accordingly, we reverse the order denying Rankin’s motion for judgment notwithstanding the verdict and direct the trial court to enter judgment for Rankin.

            Reversed and remanded.

 

 



[1] No expert testified that hip replacement surgery would cure the hip condition.  That surgery would, of course, permanently alter the hip and its benefits are not expected to be permanent.