This opinion will be unpublished and

may not be cited except as provided by

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







Diane Gregg, et al.,





Michelle Ellinghuysen, et al.,



Filed April 16, 2002


Willis, Judge


Winona County District Court

File No. C4991154


Amy J. Doll, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chtd., 215 Atlantic Avenue, P.O. Box 527, Morris, MN  56267 (for appellants)


Steven L. Viltoft, LaBore, Giuliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN  55343-0070 (for respondents)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants challenge the district court’s denial of their motion for a new trial only on damages issues for injuries resulting from an automobile accident, arguing that (1) the jury’s award of no damages for loss of consortium requires a new trial; (2) because a new trial is required on damages for loss of consortium, a new trial is also required on damages for future pain, disability, and emotional distress; and (3) the district court erred by allowing testimony regarding appellants’ incomes.  Because we conclude that the district court did not abuse its discretion by denying the motion for a new trial, we affirm.


            Respondent Michelle Ellinghuysen drove a car that struck a car driven by appellant Diane Gregg.  Gregg and her husband, appellant Terry Gregg, sued Ellinghuysen and respondent Scott Ellinghuysen for personal injury and loss of consortium.

            By special verdict, the jury found that both drivers were negligent and direct causes of the accident and apportioned negligence 90% to Ellinghuysen and 10% to Gregg.  The jury awarded Gregg $15,460 for past medical expenses and $6,500 for past pain, disability, and emotional distress.  It awarded Gregg nothing for future damages and Terry Gregg nothing for loss of consortium.

            The Greggs moved for a new trial on damages.  The district court denied the motion in part but, noting that the jury found that Gregg was permanently injured, granted a $5,850 additur for future pain, disability, and emotional distress.  See Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 49-50 (Minn. 1989) (stating that district court may grant new trial for inadequate award but allow party against whom motion is directed to consent to increase of award in lieu of new trial).  The Ellinghuysens consented to the additur, and the Greggs appeal.


             A new trial may be granted when damages awarded are insufficient or when errors occurred at the trial.  Minn. R. Civ. P. 59.01(e), (f).  The decision of whether to grant a new trial is within the district court’s discretion and will not be reversed absent an abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).


            The Greggs argue that the jury’s award of no damages for loss of consortium requires a new trial.  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).  This court must reconcile the answer in a “reasonable manner consistent with the evidence and its fair inferences,” and the verdict must stand if it can be reconciled on any theory.  Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation omitted).

            Damages for loss of consortium compensate for the loss of “reciprocal rights inherent in the marital relationship of husband and wife, including * * * comfort, companionship, and commitment to the needs of each other.”  Thill v. Modern Erecting Co., 284 Minn. 508, 510, 170 N.W.2d 865, 867-68 (1969).  Terry Gregg testified that, before the accident, Gregg shoveled snow, mowed the lawn, gardened, and cleaned their home, including dusting and vacuuming.  Since the accident, he testified, Gregg “doesn’t do any of that,” and, as a result, he now does those chores.  He also testified that Gregg is unable to help him clean up after odd carpentry jobs, that he can no longer golf as much as he did, and that her injuries have strained their relationship because he is “chasing kids to different events.”

            But portions of this testimony directly conflicted with Gregg’s testimony.  She testified that, since the accident, she dusts and vacuums once or twice a week and works in the yard, although not as often as before, and that she helped clean up after Terry Gregg’s carpentry jobs “a couple times.”

When conflicting testimony is presented, it is the function of a jury to weigh the credibility of the witnesses.  See Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198 (Minn. 1989) (stating that assessment of witness credibility is function of trier of fact).  Here, the special-verdict award of no damages for loss of consortium can be reconciled on the theory that the jury accepted Gregg’s testimony that she still provides household and other services and that, in light of the conflicting testimony, it found Terry Gregg not credible.  See Raze, 587 N.W.2d at 648.  We conclude that the district court did not abuse its discretion by denying the motion for a new trial on the issue of damages for loss of consortium.


            The Greggs argue that the appropriate remedy for the jury’s improper award of no damages for future pain, suffering, and emotional distress is a new trial, not additur, because Terry Gregg is entitled to a new trial on damages for loss of consortium.  See Huffer v. Kozitza, 375 N.W.2d 480, 482 (Minn. 1985) (stating that separate trials on spouse’s loss of consortium and other spouse’s injury damages result in “either a distortion or an overlap in the damages assessment”).  But the Greggs do not challenge the amount of the additur granted by the district court, and we have concluded that Terry Gregg is not entitled to a new trial on his claim for loss of consortium.  We therefore do not reach this argument.


            The Greggs argue that a new trial is required on damages for loss of earning capacity because the district court improperly allowed testimony regarding their incomes.  An evidentiary ruling is within the discretion of the district court and will be reversed only when it is based on an erroneous view of the law or when it constitutes an abuse of discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  Entitlement to a new trial on the ground of an improper evidentiary ruling rests on the complaining party’s ability to demonstrate that an error resulted in prejudice.  Id.

            The district court, over the Greggs’ objections, allowed Gregg to testify on cross-examination about her pre- and post-accident earnings and the Greggs’ pre- and post-accident joint incomes.  She testified that the net profits from her child-care business in 1991, 1992, and 1993 were $5,773, $5,306, and $2,631, respectively, and that her contract price as a special-education paraprofessional during the 1999-2000 school year was $11,064.  She also testified that the Greggs’ joint income in 1991 was $19,742 and that their joint income in 1999, five years after the accident, was $46,488.

            The Greggs contend that evidence of Gregg’s earnings is irrelevant and therefore should not have been admitted.  Evidence of past earnings is not required for an award of damages for loss of earning capacity.  Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987).  But such evidence is not necessarily irrelevant.  Relevant evidence is

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


Minn. R. Evid. 401.  Here, evidence of Gregg’s earnings is probative evidence that she was employed both before and after the accident.  This evidence, along with evidence on other factors, including Gregg’s life expectancy, health, occupation, talents, skills, and experience, is a relevant consideration in determining whether she sustained a loss of earning capacity.  See Kwapien, 400 N.W.2d at 184 (outlining loss-of-earning-capacity factors).

            The Greggs also contend that evidence of their joint incomes is irrelevant.  We agree that this evidence does not tend to make the determination of whether Gregg sustained a loss of earning capacity more or less probable.  See Minn. R. Evid. 401.  Evidence of the joint income of spouses, in itself, does not provide any probative evidence on any of the factors relevant to one spouse’s loss of earning capacity.  See Kwapien, 400 N.W.2d at 184.  Here, defense counsel asked Gregg to identify the amount of their joint incomes in 1991 and 1999.

But defense counsel did not ask Gregg about their joint incomes to introduce evidence against her claim that she sustained a loss of earning capacity; he did so for impeachment purposes.  Gregg testified, in a deposition, that her injuries placed a “financial strain” on her relationship with Terry Gregg, and defense counsel sought to attack Gregg’s credibility at trial by eliciting testimony regarding the increase in their joint income since the accident.

Finally, the Greggs contend that the income evidence should not have been admitted because its probative value was outweighed by its prejudicial effect.  But they do not specify why the evidence would have been prejudicial, and ample evidence supports the jury’s award of no damages for loss of earning capacity.  The Greggs have not shown that any error in admitting the evidence resulted in prejudice.  See Uselman, 464 N.W.2d at 138.  We conclude that the district court did not abuse its discretion by denying the motion for a new trial on the ground of improper evidentiary rulings.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.