This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-2011

 

Lisa Formo,

Appellant,

 

vs.

 

Scott Formo,

Respondent.

 

Filed August 19, 2002

Affirmed; motion denied

Willis, Judge

 

Pope County District Court

File No. C79958

 

DeAnna M. McCashin, Schoep & McCashin, Chtd., 1321 Broadway, Suite 100, P.O. Box 909, Alexandria, MN† 56308 (for appellant)

 

Lee L. La Bore, Steven L. Viltoft, La Bore, Giuliani, Cosgriff & Viltoft, Ltd., P.O. Box 70, Hopkins, MN† 55343-0070 (for respondent)

 

††††††††††† Considered and decided by Willis, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Appellant challenges the district courtís denial of her motion for judgment notwithstanding the verdict or, in the alternative, a new trial, arguing that (1) respondent was negligent as a matter of law; (2) the jury awarded inadequate damages; (3) the district court erred in admitting evidence; (4) the district court erroneously instructed the jury; (5) the district court erred by denying her motion to compel respondent to answer personally her request for admissions; and (6) unfair insurance practices resulted in an unjust verdict.† Respondent moves to strike portions of appellantís brief.† We affirm and deny respondentís motion.

FACTS

††††††††††† On October 28, 1992, appellant Lisa Formo was a passenger in a car driven by her husband, respondent Scott Formo.† As they were traveling south on Highway 35W, respondent saw a sign indicating that he was in an exit-only lane, and he started to change lanes.† A car in front of him slowed suddenly, and he collided with it.† Appellant asserts that, as a result of the accident, she sustained injuries to her neck and lower back and became depressed.† She sued respondent for negligence in October 1998.

††††††††††† After a trial in March 2000, a jury found that appellantís damages were $65,000 but that respondent was not negligent.† Appellant moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial.† The district court granted JNOV, concluding that respondent was negligent, that his negligence was a direct cause of the accident as a matter of law, and that appellant was entitled to $65,000 in damages.† Respondent moved to amend the findings, conclusions, order, and judgment, and the district court reversed its JNOV but ordered a new trial on all issues on the grounds of irregularities in the proceedings and misconduct by respondent and his then attorney.

††††††††††† A second trial was held; the jury found that appellantís damages were $6,650 but that respondent was not negligent.† Appellant again moved for JNOV or, in the alternative, a new trial.† The district court denied the motions and entered judgment; this appeal follows.

D E C I S I O N

I.

 

††††††††††† Appellant contends that she is entitled to JNOV on the issue of respondentís negligence.† An appellate court reviews de novo the district courtís denial of a motion for JNOV.† Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).† The denial must be affirmed if there is ďany competent evidence reasonably tending to sustain the verdict.Ē† Id. (quotation omitted).† But if ďthe juryís verdict cannot be sustained on any reasonable theory of the evidence,Ē the moving party is entitled to JNOV as a matter of law.† Obst v. Microtron, Inc., 614 N.W.2d 196, 205 (Minn. 2000).

††††††††††† Appellant contends that consistent testimony from the police officer, respondent, and herself established that respondent was at fault in the accident for driving too fast and for following the car ahead of him too closely.† Further, she asserts that nothing in the officerís testimony could lead to a reasonable inference that the accident was unavoidable.† Having established at trial that respondent violated at least two traffic statutes that were proximate causes of the accident, appellant asserts that she proved negligence per se and is entitled to JNOV.

††††††††††† A driverís violation of a traffic regulation is prima facie evidence of negligence.† Minn. Stat. ß 169.96(b) (2000).† Once a plaintiff has established that a traffic violation occurred, the burden shifts to the defendant to submit evidence that there was a ďreasonable excuse or justificationĒ for the violation or that a reasonable person could believe that the violation would not endanger anyone.† Borris v. Cox, 245 Minn. 515, 518, 73 N.W.2d 372, 374-75 (1955); Freude v. Berzins, 379 N.W.2d 174, 176 (Minn. App. 1985).† If the defendant presents such evidence, the question of whether the violation constitutes negligence is for the jury to decide.† Gertken v. Farmers Elevator of Kensington, Minn., Inc., 411 N.W.2d 550, 554 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).

††††††††††† Thus, evidence of traffic violations was only prima facie evidence of respondentís negligence.† The jury heard appellantís and respondentís descriptions of the accident, as well as testimony from the state trooper who investigated the accident.† As the district court stated, while there was evidence as to respondentís negligence, ďthere was also sufficient evidence presented from which a jury could conclude that the accident in question was unavoidable.Ē

††††††††††† The district court also noted that the juries in both trials had found that respondent was not negligent.† Appellant challenges the courtís reliance on the jury finding in the first trial.† But the court merely referred to the fact that two juries had found no negligence on respondentís part, which is accurate.† The district court did not err by denying appellantís motion for JNOV.

II.

††††††††††† Appellant challenges the district courtís denial of her motion for a new trial, contending that the juryís award of damages was so inadequate that it showed jury bias and prejudice.† She contends that she is entitled to conditional additur, based on the juryís award of damages in the first trial.

††††††††††† A party may move for a new trial on the ground that the jury awarded insufficient damages based on passion or prejudice.† Minn. R. Civ. P. 59.01(e).† The district courtís denial of such a motion will not be reversed unless there was an abuse of discretion.† Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988).† Similarly, the denial of a motion for additur will not be reversed unless the court abused its discretion.† Id.

††††††††††† The jury awarded $1,000 for past pain and suffering, $2,400 for past wage loss, and $3,250 for past medical expenses and diagnostic tests.† Appellant contends that the jury award was inadequate to compensate her for her injuries and that the jury was prejudiced because she was respondentís wife.† She cites payments that she received on her workersí-compensation claim as evidence that she suffered damages, as well as the finding in the first trial that she suffered damages of $65,000.

††††††††††† The district court, in denying the motion for a new trial on damages, noted that conflicting testimony was presented, even from appellantís experts, as to whether appellantís injuries arose from the accident or were pre-existing.† The question of damages was within the province of the jury, and the district court did not abuse its discretion by denying appellantís motion.† See id. (noting that juryís decision is entitled to deference as long as it is within range of reasonable awards).† Because the district court did not err by denying the motion for a new trial, it also did not err by denying appellantís request for additur.† Id.

III.

††††††††††† Appellant also contends that she is entitled to a new trial based on evidentiary errors.† She challenges the admission of (1) a photograph of respondentís damaged car and (2) treatment notes of her treating psychologist, which she claims contain multiple references to her receipt of workersí-compensation and social-security benefits.

Evidentiary rulings are within the broad discretion of a district court and will be reversed only if the district court clearly abused that discretion.† Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).† A new trial will be granted on the ground of improper evidentiary rulings only if the complaining party demonstrates prejudicial error.† Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 917 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).† An ďerror is prejudicial if the error might reasonably have changed the result of the trial.Ē† Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) (citation omitted).

††††††††††† Appellant made a motion in limine challenging the admissibility of the photograph of respondentís car.† She asserted that respondent would use the photograph to argue that because there was only minor damage to the vehicle, appellantís injuries were minor as well and that expert testimony was required to provide foundation for this theory.† The district court denied the motion.† The photograph was introduced at trial without further foundation.

††††††††††† Appellant contends that respondent did not provide any foundation for the photograph, such as when it was taken and whether the vehicle portrayed was the one involved in the accident.† But appellant did not raise these foundational challenges when the exhibit was offered, and she may not do so for the first time on appeal.† Koehnle v. M.W. Ettinger, Inc., 353 N.W.2d 612, 614 (Minn. App. 1984).

††††††††††† Appellant also raises two challenges to the courtís receipt of her psychologistís treatment notes.† First, she contends that they were not included in either partyís exhibit list and were not offered until the day after the psychologist testified.† She did not raise these objections below and is precluded from raising them for the first time on appeal.† Id. at 614.† Next, she argues that the notes were prejudicial because they contained multiple references to her receipt of workersí-compensation and social-security benefits.† The district court overruled her objection but indicated that certain portions of the notes might have to be redacted.† Appellant offered a redacted copy of the treatment notes, which the court then received into evidence.† Because of the redaction of the portions of the notes to which appellant objected, she has no basis for appeal on that issue.

IV.

††††††††††† Appellant contends that the district court erred in failing to instruct the jury by using CIVJIG 91.40, relating to the apportionment of damages, and by failing to give a curative instruction regarding evidence of her receipt of workerís-compensation benefits and social-security benefits.† The district court has broad discretion in selecting jury instructions, and this court will not reverse its decision absent an abuse of that discretion.† Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).† Errors in instructions do not warrant a new trial unless ďthey destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice.Ē† D.H. Blattner & Sons, Inc. v. Firemenís Ins. Co. of Newark, 535 N.W.2d 671, 675 (Minn. App. 1995) (quotation omitted), review denied (Minn. Oct. 18, 1995).

††††††††††† Appellant first argues that by failing to give CIVJIG 91.40, as she requested, the district court did not properly instruct the jury on the burden of proof of apportionment of damages when pre-existing conditions are present.† See 4A Minnesota Practice CIVJIG 91.40 (1999 & Supp. 2002).† This court recently held that CIVJIG 91.40 misstates Minnesota law by placing the burden of proof for the apportionment of aggravation of pre-existing injuries on the defendant.† Morlock v. St. Paul Guardian Ins. Co., 632 N.W.2d 268, 271-72 (Minn. App. 2001), review granted (Minn. Oct. 24, 2001).† The supreme courtís decision on review has not been issued.† But the district court here did not give the instruction disapproved of in Morlock, and we find no error or abuse of discretion in the district courtís decision not to give CIVJIG 91.40.†

††††††††††† Appellant also contends that the district court erred by failing to provide a curative instruction regarding multiple references respondent made in cross-examination and closing argument to her receipt of workersí-compensation or social-security benefits.† In her reply brief, appellant refers to her request for a curative instruction, dated March 31, 2000, contained in her appendix.† But that was the date the matter was submitted to the jury in the first trial.† Appellant has not shown that such a request was made in the second trial, which is the subject of this appeal.† Our review of the portion of the transcript in which the court discussed proposed jury instructions with the parties in the second trial does not show that appellant sought such a curative instruction or that she objected to the district courtís proposed instructions.† Nor did she object to respondentís closing argument.† Generally, if a party fails to object to closing arguments and does not request a curative instruction, she may not obtain a new trial on appeal on that ground.† Bisbee v. Ruppert, 306 Minn. 39, 47-48, 235 N.W.2d 364, 370-71 (1975).† The only exception to this rule is when counselís conduct is so egregious that the district court should have given a curative instruction on its own motion.† Id. at 48, 235 N.W.2d at 371.† There is no showing that those exceptional circumstances exist here.

V.

††††††††††† Next, we address appellantís claim that the district court erred in denying her motion to compel respondent personally, rather than his attorney, to answer her request for admissions.† Under Minn. R. Civ. P. 36.01, when a party serves a request for admissions, answers must be supplied within 30 days, signed by the party or the partyís attorney.† A district courtís decision on discovery matters will not be reversed unless the court abused its discretion or erred as a matter of law.† Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 305-06 (Minn. 1990).† Because the answers to the request for admissions were signed by respondentís attorney, as permitted by rule 36.01, appellant has shown no error.

††††††††††† Respondent moved to strike the portion of appellantís brief addressing this issue, contending that it was unsupported by the record.† See Minn. R. Civ. App. P. 110.01 (providing that record on appeal consists of papers filed in the trial court, exhibits, and transcripts).† Appellant filed a response, citing portions of the record supporting her assertions.† In light of appellantís response and our decision addressing and rejecting her arguments on the merits, we deny the motion to strike.

VI.

††††††††††† Finally, we consider appellantís claims that respondentís liability insurer engaged in unfair insurance practices in violation of Minn. Stat. ß 72A.20 (2000) and that respondentís attorneys, hired by the insurer, did not properly represent his interests.† Appellant contends that these unfair practices resulted in a jury verdict that was unfair to her.† She also alleges that respondentís counsel made numerous misstatements of the evidence in his closing argument, which she asserts is additional proof of the insurerís bad faith.

††††††††††† We question, as did the district court, whether appellant has standing to raise these claims.† Nonetheless, the district court ruled that although there was much discussion relating to the conflicts among respondent, his current and prior counsel, and his liability-insurance carrier, they did not affect the verdict and, in fact, respondent prevailed.† While characterizing the allegations as serious, the court ruled that they should be addressed in an ethical complaint or in insurance or malpractice litigation. †Moreover, as appellant acknowledges, ďa private party does not have a cause of action against an insurerĒ for violation of section 72A.† Morris v. American Family Mut. Ins. Co., 386 N.W.2d 233, 233 (Minn. 1986).† The district courtís decision to deny appellantís motion for a new trial on these grounds was not error.

Appellant also contends that respondent misstated the evidence during final argument, which appellant contends shows a lack of good faith on the part of respondentís insurer.† Appellant did not move for a curative instruction, and, when counsel was specifically questioned by the district court regarding whether she had anything additional to place in the record, she said that she did not.† Appellant therefore waived her claim for a new trial on this ground.† See Bisbee, 306 Minn. at 48, 235 N.W.2d at 371.

Respondent also moved to strike the portion of appellantís brief that discusses this issue as unsupported by fact and based on speculation.† But because appellant has provided citation to the record and made statutory arguments and because we have addressed and rejected those arguments, we deny the motion to strike.

††††††††††† Affirmed; motion denied.

†††††††††††