This opinion will be unpublished and

may not be cited except as provided by

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






Barbara Benson,


Selby-Dale Cooperative, d/b/a St. Alban's Park Condominium,


Filed November 6, 2001


Randall, Judge


Ramsey County District Court

File No. C299009887



Gary T. LaFleur, Stephanie A. Riley, Babcock, Neilson, Mannella, LaFleur & Klint, 118 East Main Street, Anoka, MN 55303 (for appellant)


Kerry O. Atkinson, Taylor & Coon, 3920 Northwoods Drive, Arden Hills, MN 55112 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


R. A. RANDALL, Judge


            Appellant argues the trial court erred by denying her motion for additur, in the alternative a new trial, and denying appellant's motion to disallow respondent from taxing their costs.  The damage award was not contrary to the evidence, and the trial court did not err in its interpretation of Minn. R. Civ. P. 68.  We affirm.


Appellant Barbara Benson brought a personal injury action against respondent Selby-Dale Cooperative, d/b/a St. Alban's Park Condominium, after a slip and fall on the ice on January 16, 1999.  Respondent made a settlement offer of $6,000 pursuant to Minn. R. Civ. P. 68, which appellant rejected.  At trial, the jury found that respondent and appellant were each 50% at fault.  The district court adopted the special verdict of the jury as its finding of fact, and concluded:

1.      That [appellant's] past medical damages in the amount of $3,822 is offset by past medical benefits paid and therefore there is no net award for this amount.

2.      That the past wage loss in the amount of $3,310 which was incurred by the [appellant] up to the time of trial is reduced 50% as a result of [appellant's] own negligence, thereby reducing the amount of the award to $1,655 for which [appellant] is entitled to recover judgment against the [respondent]. 


The trial court ordered judgment for the appellant in the amount of $1,655, found that appellant was the prevailing party, and ordered that respondent pay appellant's costs of $7,544.76.

After a hearing on post-trial motions, the trial court denied appellant's motions for additur, a new trial on damages, and denied respondent's motion to amend the findings of fact, conclusions of law, and order for judgment.  The trial court ordered that costs and disbursements of the parties be offset against each other pursuant to Minn. R. Civ. P. 68 as interpreted by Borchert v. Maloney 581 N.W.2d 838 (Minn. 1998).  Respondent's allowed costs and disbursements were $3,626.51.  Benson now appeals from the district court's denial of her motions.


I.   Motion for Additur or New Trial


            A district court may not grant additur unless the verdict is unreasonable.  See  Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988) (jury's decision entitled to wide deference as long as it is within range of reasonable awards), review denied (Minn. May 4, 1988).  The decision "whether to grant additur rests almost wholly within the trial court's discretion."  Id. (citation omitted).   

Appellant argues that the jury reached an inconsistent verdict by awarding damages for wage loss and medical expenses, while awarding nothing for pain and suffering.  Therefore, she requests damages for pain and suffering in her motion for additur.

Generally, where a defendant admits fault, and the damages sustained by a plaintiff are clearly established and severe, damages for pain and suffering are awarded.  See Walser v. Vinge, 275 Minn. 230, 146 N.W.2d 537 (1966) (new trial on damages granted due to defendant's fault and pain caused by back injury and surgery); Seydel v. Reuber, 254 Minn. 168, 94 N.W.2d 265 (Minn. 1959) (new trial on damages granted due to clear evidence of defendant's fault, plaintiff's severe whiplash requiring traction and surgery, and doctor's agreement that she suffered pain); Clark v. Johnson Bros. Constr., 370 N.W.2d 896 (Minn. App. 1985) (fault was not at issue, and injuries sustained were clearly established and required corrective surgery), review denied (Minn. Sept. 19, 1985). 

Here, conflicting medical evidence about appellant's injuries was presented at trial. Respondent's expert concluded that appellant suffered no permanent injury as a result of her fall, while appellant testified she suffers from chronic pain.  Fault was neither clearly established nor did either party admit fault.  The jury's finding that both parties were 50% at fault indicates the closeness of the negligence issue.  Appellant's injuries were not clearly established.  It was undisputed that her injury did not require surgery.  We conclude the record reasonably supports the jury verdict.  See Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (concluding that "[w]hen there is conflicting medical testimony as to the nature and extent of a plaintiff's injuries, we give great deference to the jury's verdict").  Thus, the district court did not err in denying appellant's motion for additur.  

As an alternative to additur, appellant requests a new trial on damages.  A new trial would require setting aside the jury's special verdict answers.  A jury's answer to a special-verdict question "can be set aside only if no reasonable mind could find as did the jury."  Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997) (citation omitted); see also Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986) (jury verdict will be sustained on any reasonable theory based on the evidence).  On appellate review, we will not set aside answers to special-verdict questions unless they are "perverse and palpably contrary to the evidence" or unless the evidence is so clear that there is "no room for differences among reasonable people."  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).

For the same reasons we affirm the district court's denial of appellant's motion for additur, we affirm its decision to deny appellant's motion for a new trial.  The record reasonably supports the jury's findings.  The district court did not err in denying appellant's motion for a new trial on the issue of damages.

II.  Minnesota Rule 68 of Civil Procedure

A reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).  Statutory construction is a question of law, which appellate courts review de novo.  Brookfield Trade Ctr. Inc., v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). 

Under the Minnesota Rules of Civil Procedure, a party may make a settlement offer at any time prior to 10 days before the trial begins.  "If the judgment finally entered is not more favorable to the offeree than the offer, the offeree must pay the offeror's costs and disbursements."  Minn. R. Civ. P. 68.  Under Minnesota law the "prevailing party" in a lawsuit is also entitled to recover his or her costs and disbursements from the non-prevailing party.  Minn. Stat. §§ 549.02, .04 (2000).  In reconciling the rule and the statute, the trial court relied on Borchert v. Maloney, 581 N.W.2d 838 (Minn. 1998).  While Borchert is instructive, rule 68 and "prevailing party" decisions are fact sensitive and are generally best decided on a case-by-case basis.

In Borchert, the defendant made a rule 68 settlement offer of $10,000, which the plaintiff rejected, and the case went to trial.  Id. at 839.  The jury awarded the plaintiff $11,651, but after collateral source offsets and a comparative negligence reduction, the trial court ordered judgment for plaintiff in the amount of $4,502.40, plus $4,276.47 of costs and disbursements. Id. at 839, 841.  The trial court also ordered the plaintiff to pay the defendant's costs and disbursements because the net judgment entered in her favor was less than the defendant's rule 68 settlement offer.  Id. at 839.  The Minnesota Supreme Court agreed with the trial court that the plaintiff was the "prevailing party" under Minn. Stat. § 549.02, and that Minn. R. Civ. P. 68 did not preclude plaintiff from recovering her costs and disbursements from the defendant.  Id. at 840-41.  Under rule 68, plaintiff was correctly ordered to pay defendant's costs (while collecting her own) even though her net jury verdict of $4,138 was below defendant's rule 68 offer of $10,000. 

In determining who qualifies as the prevailing party, "the general result should be considered, and inquiry made as to who has, in the view of the law, succeeded in the action."  Id. at 840 (footnote and quotation omitted).  Here, appellant is the "prevailing party" because she did succeed in getting at least a jury verdict and the money judgment was in her favor.  Cf. Luna v. Zeeb, 633 N.W.2d 540, __ (Minn. App. 2001) (plaintiff is not prevailing party and not entitled to costs if net verdict was zero).  Luna is instructive because it points out that the reasonable intent of the rules and caselaw is to call someone a "prevailing party" if they have at least sued for something and won something, even if less than they hoped.  On the other hand, someone whose net return from a jury verdict after the district court makes the proper and required adjustments is nothing, has not prevailed in anything, and, thus, is not a prevailing party for purposes of taxing costs and disbursement.

Here, plaintiff received an actual money verdict, modest but an actual verdict.  Under Borchert, we conclude that the district court properly awarded appellant's costs under Minn. Stat. §§ 549.02, .04.  

Appellant's counsel argues that under Borchert, because her verdict of $1,655 plus allowed costs and disbursements of $7,544.76 exceeded respondent's $6,000 rule 68 offer, that not only can his client tax costs, but can also prevent respondent from taxing theirs.  He argues that since his client finally collected a little over $9,000 (verdict plus allowable costs), that total exceeds respondent's offer of $6,000, and, therefore, respondent gets no rule 68 relief.  He argues that in Borchert the plaintiff was allowed to tax costs and disbursements even though the verdict was less than the rule 68 offer, and that the respondent was allowed to tax costs and disbursements because the plaintiff's verdict in Borchert plus taxation of costs ($4,502 plus $4,000 costs) was less than the $10,000 rule 68 offer.  Appellant's counsel extrapolates and argues that was the holding of Borchert.  Thus, he argues that since his client's low verdict plus taxation of costs exceeds the respondent's $6,000 rule 68 offer, that under Borchert, respondent must both pay costs and be denied the ability to tax their own.  We disagree.  Appellant reads far too much into Borchert, because the issue of how to compute a judgment was never before the Borchert court.  The court gave no indication of what it would have done had Borchert's allowable costs plus the low verdict exceeded respondent's $10,000 rule 68 offer.  Simply put, Borchert did not speak to the precise issue which appellant raises, and neither side has pointed to a case directly on point.  The reasonable intent of rule 68 needs to be examined.  The other cited cases are helpful but do not control.  The common-sense intent of rule 68 is clear.  The legislature wanted to encourage reasonable presettlement offers and the carrot to defense counsel was the ability to tax costs and disbursements even while "losing" if their offer exceeded the plaintiff's verdict.  It would be speculative to conclude that any purpose would be served by waiting until the arbitrary amount of the prevailing party's costs and disbursements is submitted, at times litigated, and finally allowed (at some unknown future date) in some unknown amount by the trial judge.   Allowable costs are arbitrary, not because they are in any way unethical or illegal, but simply because they may well not bear any relationship to the worth of the case.  It is possible to have a good case on liability and damages and a large verdict where the plaintiff's costs are minimal because of the lack of need for multiple depositions and experts testifying at trial and all the other factors that can go into taxing costs.  On the other hand, it is possible to have a marginal case, both on liability and damages, where in an effort to bolster the plaintiff's case, plaintiff's attorneys engage in lengthy and expensive discovery and take the financial risk of hiring qualified medical and/or technical experts to testify.  That type of case might result in an extremely modest verdict, well below the defendant's rule 68 offer, if one was made.  Since, however, under Borchert, that plaintiff is called "prevailing" and can tax allowable costs and disbursements, the trial judge might rightfully award an amount of allowable costs far exceeding the jury verdict on damages, which is exactly the case here.  Appellant's allowable costs and disbursements were approximately five times the $1,655 net verdict.  Those allowable costs should not "tell the tale" as to the issue of the defendant winning under rule 68.

Our conclusion is that it would cheapen, if not outright defeat, the objective of rule 68 (to encourage reasonable settlement offers) if what is a reasonable rule 68 offer could never be known until the post-trial litigation over allowable costs is ultimately concluded.  If you take future speculation on allowable costs (the fact that a plaintiff can say "today my discovery costs are x amount, does not mean that that figure will be finally allowed by the trial judge) out of the equation, then you have the normal controllable situation where the defense tenders a rule 68 offer.  At that point in time, the plaintiff's damages, such as lost wage claims, medical expense claims, disability, future lost wage and medical claims, and future disability, etc., are usually known to both sides.  It is at that point, and often fairly close to trial, that the plaintiff says, "I will settle for x" and defense counsel says "I do not have the authority to pay that much (that is "automatic"), but I am prepared to make a rule 68 settlement offer of y."  Those negotiations tend to take place on the "worth" of the case for settlement purposes.  It is true that at that point the plaintiff could argue that they have all these pretrial costs to date and if they get any kind of a verdict they could attempt to add those in, but the possible worth of pretrial discovery costs, which have yet to be argued before a judge as to allowability or not, are not the momentum that turns the wheel of settled cases, "case worth" is.

Ultimately, we conclude that appellant's net judgment of $1,655 (not the $1,655 plus the appellant's costs of $7,544.76) should be compared with the pretrial $6,000 rule 68 offer.  Thus, while appellant can tax her own costs because under Borchert she "prevailed," under rule 68 appellant is responsible to pay respondent's costs and disbursements.

The district court properly ordered that both parties offset each other's allowable costs and disbursements.