This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Thomas L. Haefs,





Tonia J. Thoemke,



Filed July 22, 2003


Willis, Judge


Washington County District Court

File No. C1013385


Michael P. Helgesen, Paige J. Donnelly, Ltd., 900 Degree of Honor Building, 325 Cedar Street, Saint Paul, MN  55101 (for respondent)


Steven D. Pattee, Waldeck & Lind, P.A., 730 TCF Tower, 121 South Eighth Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant, the defendant in this automobile-accident case, challenges certain rulings by the district court at trial and the jury’s award of damages to respondent for loss of future earning capacity.  We affirm.


This lawsuit arises from an automobile accident that occurred on September 6, 1998, at the intersection of the south-side frontage road of Highway 36 and Oldfield Avenue in Oak Park Heights.  Oldfield Avenue terminates at the frontage road with a stop sign, forming a “T” intersection; traffic on the frontage road does not stop.

            Respondent Thomas Haefs was driving his pickup truck west on the frontage road, intending to turn left and travel south on Oldfield Avenue.  Appellant Tonia Thoemke was also driving west on the frontage road, some distance behind Haefs.  As Haefs approached the intersection, he activated his left-turn signal.  Haefs stopped to allow oncoming traffic to clear the intersection, and, as he waited, Thoemke’s car struck the rear of Haefs’s truck.

            Haefs commenced this lawsuit, alleging that Thoemke was negligent; Thoemke responded that Haefs’s own negligence was equal to or exceeded hers and thus precluded any recovery.  At the close of Haefs’s case, Thoemke moved the district court to direct a verdict that Haefs was negligent as a matter of law for not signaling his turn at least 100 feet before the intersection, in violation of Minn. Stat. § 169.19, subd. 5 (1998), and that Thoemke was thereby entitled to judgment.  The district court denied Thoemke’s motion.  At the close of the evidence, the district court gave a jury instruction regarding the reduced-speed requirement of Minn. Stat. § 169.14, subd. 3 (1998), which provides that a driver must reduce his or her speed when approaching an intersection.  The jury found that Thoemke was negligent, that Haefs was not negligent, and that Haefs was entitled to more than $182,000 in damages, including $50,000 for loss of future earning capacity.  The district court offset the damages by $9,512.87, representing the amount Haefs had already received in no-fault insurance benefits.

            Thoemke appeals, arguing that (1) the district court erred by denying her motion for a directed verdict, (2) the district court abused its discretion by giving the jury instruction on the reduced-speed requirement, (3) the award of $50,000 in damages for loss of future earning capacity was excessive, and (4) she is entitled to a greater collateral-source offset.



In considering a motion for a directed verdict, the district court must decide whether, as a matter of law, the evidence is sufficient to present a fact question for the jury.  Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  A directed verdict should be granted only where, in light of the evidence as a whole, “it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law.”  Id.  In considering the motion, the district court must accept as true the evidence favorable to the nonmoving party and all reasonable inferences that can be drawn from that evidence.  Id.  This court applies the same standard.  Id.  While ordinarily the question of the comparative negligence of the parties is for the jury, when the evidence is “demonstrably insufficient” to sustain a verdict for the plaintiff and compels a finding that the plaintiff’s negligence was equal to, or exceeded, that of the defendant, an order of the district court directing a verdict is justified.  See Winge v. Minn. Transfer Ry. Co., 294 Minn. 399, 400-01, 201 N.W.2d 259, 261 (1972).

Thoemke argues that Haefs violated the statute requiring drivers to signal a turn no less “than the last 100 feet traveled by the vehicle before turning.”  Minn. Stat. § 169.19, subd. 5 (1998).  Violation of a statute is prima facie evidence of negligence.  Id. § 169.96(b) (2002).  “Where there is no evidence to excuse a violation of * * * [a] statute, the court should hold the violator negligent as a matter of law.”  Riley v. Lake, 295 Minn. 43, 53, 203 N.W.2d 331, 338 (1972).

While Haefs stated at his deposition that he activated his signal one-and-a-half to two car lengths before the intersection, he testified at trial that he activated his turn signal “[h]alf a block” before the intersection.  This inconsistency was pointed out by Thoemke at trial, but the jury apparently chose to accept Haefs’s trial testimony.  Viewing the evidence in the light most favorable to Haefs, we conclude that a jury could properly find that Haefs was not negligent.  Thus, the district court did not err by denying Thoemke’s motion for a directed verdict.


Thoemke next challenges the district court’s jury instruction on the reduced-speed requirement.  A district court has “broad discretion” in determining jury instructions.  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).  But error in a jury instruction may be fundamental if the instruction destroys the substantial correctness of the entire jury charge, results in a miscarriage of justice, or leads to substantial prejudice of a party.  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

            State law requires drivers to

drive at an appropriate reduced speed when * * * , when approaching and crossing an intersection * * * and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.


Minn. Stat. § 169.14, subd. 3(a) (1998).  Here, Thoemke argues that the district court’s decision to instruct the jury on the reduced-speed requirement was unduly prejudicial to her case.

            The supreme court has held that where (1) the speed of a driver on a through highway is lawful, (2) the application of the reduced-speed statute is predicated solely on the presence of an intersection, and (3) none of the other factors provided in the statute (e.g., the “special hazards”) is present, the reduced-speed requirement does not apply.  Schlukebier v. LaClair, 268 Minn. 64, 67, 127 N.W.2d 693, 696 (1964).  The record does not indicate that Thoemke’s speed was unlawful as she approached the intersection or that any of the special hazards mentioned in the statute was present.  Thus, the district court erred by giving the reduced-speed instruction.

            But to prevail on appeal, a party must show both error and that the error caused prejudice.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).  Although Thoemke argues that the instruction had the effect of “piling on” additional alleged wrongdoing on her part, she cites no other evidence or authority indicating that the instruction was unduly prejudicial.  Thus, we conclude that the district court’s error of law was harmless, and we decline to hold that the court abused its discretion by giving the instruction.  See Minn. R. Civ. P. 61.


Thoemke argues that the jury’s award of damages for loss of future earning capacity is not supported by sufficient evidence and is excessive.  This court will set aside a damage award if it is “manifestly and palpably contrary to the evidence.”  Levienn v. Metro. Transit Comm’n, 297 N.W.2d 272, 273 (Minn. 1980) (citation omitted). But this court must consider the evidence in the light most favorable to the verdict.  Rayford v. Metro. Transit Comm’n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).  An award of damages is excessive when it “so greatly exceed[s] what is adequate as to be accountable on no other basis than passion and prejudice.”  Dallum v. Farmers Union Cent. Exch., Inc., 462 N.W.2d 608, 614 (Minn. App. 1990) (quotation omitted), review denied (Minn. Jan. 14, 1991).

            A.         Whether damages have sufficient evidentiary support

            A plaintiff has the burden of proving future damages to a reasonable certainty and cannot recover for damages that are remote, speculative, or conjectural.  Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980).  But the plaintiff need only show “that such damage is more likely to occur than not to occur.”  Id. (citation omitted).

Here, Thoemke argues that there is no evidence that Haefs intended to work past the age of 55.  Haefs, who was 50 years old at the time of trial, was employed as a corrections supervisor and apparently faced mandatory retirement at age 55.  He testified that he had planned, after mandatory retirement until he reaches age 65 (when he becomes eligible for social-security benefits), to get a part-time job driving a delivery truck but that due to the injury he sustained to his back in the accident, he will not be able to perform jobs that involve lifting, bending, or twisting of the back.  Thus, the record contains sufficient evidence that Haefs intended to work after mandatory retirement.

            B.         Whether amount of damages is excessive

            To establish that the amount of damages is excessive, Thoemke cites two unpublished decisions in which this court upheld awards of less than $50,000 for loss of future earning capacity.  These decisions, involving different parties with different injuries, provide no basis for us to conclude that the damages award was excessive here.


Finally, Thoemke claims that the district court erred in its application of the collateral-source statutes.  This issue presents a question of law, which we review de novo.  See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

            Thoemke argues that the district court erred by failing to reduce the damages awarded to Haefs by $100,000 to reflect the full value of underinsured motorist (UIM) coverage available to Haefs and by $20,000 to reflect the basic economic-loss benefits available to Haefs under Minn. Stat. § 65B.44, subd. 1 (2002).  Thoemke does not dispute that by the date of the verdict, Haefs had not been paid benefits in these amounts.

            A.         UIM benefits

            Collateral sources are payments for an injury made to the plaintiff “up to the date of the verdict” under a government-disability, worker’s-compensation, automobile-insurance, or other plan.  See Minn. Stat. § 548.36, subd. 1 (2002).  A defendant who has been found liable for the injury is entitled to have the damages reduced by the

amounts of collateral sources that have been paid for the benefit of the plaintiff or are otherwise available to the plaintiff as a result of losses except those for which a subrogation right has been asserted[.]


Id., subd. 2(1) (2002).  Thoemke does not dispute that the $100,000 in available UIM coverage was not paid to Haefs on or before the date of the verdict but argues instead that the “otherwise available” language of the statute requires damages to be offset by possible future benefits.

In Smith v. Am. States Ins. Co., this court, interpreting Minn. Stat. § 548.36, held that the language of the statute “clearly and unambiguously allows deduction only for payments made to the plaintiff up to the date of the verdict” and that the statute “expressly does not apply to payments not yet received.”  Smith v. Am. States Ins. Co., 586 N.W.2d 784, 786 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999); see also W. Nat’l Mut. Ins. Co. v. Casper, 549 N.W.2d 914, 916 (Minn. 1996) (stating that “collateral sources” are “payments related to the injury and paid to the plaintiff up to the date of the verdict” (emphasis added)).  Thus, Thoemke cannot offset the damages by the amount of possible UIM benefits that may be paid after the date of the verdict.

            B.         No-fault benefits

            Thoemke also claims that the damages should be offset by $20,000 to reflect the basic economic-loss benefits available to Haefs under Minn. Stat. § 65B.44, subd. 1.  The no-fault act provides that the district court “shall deduct from any recovery the value of basic * * * economic loss benefits paid or payable, or which would be payable but for any applicable deductible.”  Minn. Stat. § 65B.51, subd. 1 (2002).

Thoemke argues that the “or payable” language of Minn. Stat. § 65B.51, subd. 1, allows an offset for benefits that may be paid to Haefs in the future.  But in Anderson v. Honaker, 365 N.W.2d 307, 309 (Minn. App. 1985), this court held that only the amount of actual wage-loss benefits, and not unpaid future wage-loss benefits, could offset damages under Minn. Stat. § 65B.51, subd. 1.  The Anderson court reasoned that the

“no-fault carrier of the successful plaintiff in this case is not a party to the action.  Thus, the plaintiff has no assurance that his insurance carrier will accept the amount of damages awarded, let alone that it will accept responsibility for such damages.  If the no-fault carrier contests these matters, then the successful plaintiff must relitigate his claim.”


Id. (quoting Haugen v. Town of Waltham, 292 N.W.2d 737, 740 (Minn. 1980) (holding that unpaid future medical benefits cannot be used to offset damages)).  The same reasoning applies to basic economic-loss benefits.  Thus, the district court’s decision to offset the damages by only $9,512.87, the actual amount of no-fault benefits paid to Haefs before the verdict, was not error.