This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2031

Kristi Wussow,

Respondent,

vs.

Western National Mutual Insurance,

Appellant.

Filed May 20, 1997

Affirmed

Toussaint, Chief Judge

Douglas County District Court

File No. C295704

Paul V. McCarten, Tillitt McCarten Johnson Drummond & Haseman Ltd., 801 Broadway, Post Office Box 188, Alexandria, MN 56308 (for respondent)

Michael J. Dolan, Thornton, Hegg, Reif, Johnston & Dolan, P.A., 1017 Broadway, Post Office Box 819, Alexandria, MN 56308 (for appellant)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Western National appeals from the denial of its post trial motions for a new trial or remittitur, arguing the damages were not supported by the evidence and the trial court erred in admitting into evidence references to an independent medical examination (IME). Western National also appeals from a jury verdict in favor of respondent Kristi Wussow, arguing the trial court erred in admitting the references to the IME. Because the trial court did not (1) abuse its discretion in denying Western National's post trial motions or (2) err in allowing the references to the IME, we affirm.

D E C I S I O N

I.

Western National argues the trial court erred in denying its motion for a new trial, alleging the evidence did not support the verdict. The trial court has discretion in determining whether to grant a new trial and will be reversed only for a clear abuse of that discretion. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

Wussow was injured in a hit-and-run accident by an unidentified driver. She had automobile insurance with Western National. Western National denied coverage, and Wussow commenced an action for uninsured benefits. After a trial, the jury awarded Wussow $110,000. Wussow introduced evidence to show the nature and extent of her injuries, how the accident changed her lifestyle, and her present and future medical costs. The jury heard testimony from medical experts and saw actuarial tables for loss of income, medical expenses, and life expectancy. Based on the substantial evidence supporting the verdict, the trial court did not abuse its discretion in denying Western National's motion for a new trial.

II.

Western National claims that the trial court erred in not granting remittitur, arguing that Wussow only suffered a soft tissue injury, negligence was not an issue, and there was no issue of future lost wages.

The decision to grant remittitur is entirely within the sound discretion of the court. Hanson v. Chicago, Rock Island & Pac. R.R. Co., 345 N.W.2d 736, 739 (Minn. 1984).

The record shows that Wussow suffered from post-concussion syndrome with headaches, chronic cervical strain/sprain with occipital neurotic headaches, trapezius fibromyositis, and a chronic lumbar strain/sprain (with evidence of two bulging discs). The record also shows Wussow testified about her pain, the changes to her life, and her future medical costs. Based on this record, the trial court did not abuse its discretion in denying Western National's motion for remittitur.

III.

Western National appeals from the trial court's admission into evidence of references to an IME. Decisions to admit or exclude evidence rest within the broad discretion of the trial court, and its rulings will not be disturbed unless based on an erroneous view of the law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Moreover, even if the admission or exclusion of evidence is in error, a party claiming error must demonstrate that the error was prejudicial in order to entitle the complaining party to a new trial. Id. (citing Midway Ctr. Ass'n v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn. 1975)).

During trial, Wussow proposed to introduce into evidence the results of an IME Western National ordered her to submit to. The trial court ruled that the underlying facts and conclusions of the IME were irrelevant and inadmissible. The trial court, however, allowed Wussow to testify that she, at Western National's request, submitted to an IME and that she then gave the test results to her treating neurologist, Dr. Steven S. Lebow. Dr. Lebow was allowed to testify that he was aware the IME took place and that he reviewed the IME report.[1]

After deliberating for a short time, the jury asked the judge: "Are/is there medical records from Western National Mutual doctor * * * ?" The parties agreed on a curative instruction to the jury that told them the IME was not received into evidence and that they should not speculate about its contents.

Western National argues that the fact that an IME had been completed was irrelevant to any determination of disputed fact in the trial. Western National also argues that even if the references to the IME were relevant, the references were more prejudicial than probative.

The record shows that the trial court allowed Wussow to refer to the IME because it believed the existence of the IME was relevant to show that Wussow had cooperated fully with her insurance company and had gone through all the necessary procedural steps required to make her claim. In addition, Dr. Lebow's reference to the IME was allowed to show that Wussow did not merely ignore the results of the IME, but brought them to the attention of her treating neurologist to aid in her diagnosis and treatment.

The trial court's reasoning for admitting the references to the IME is compelling. An element of making an insurance claim is whether the insured complied with all the insurance company's requirements, and the IME testimony shows Wussow's compliance with Western National's request.

As for prejudice, the record shows that the content of the IME was not revealed to the jury, and the jury never heard whether the IME was more or less favorable toward Wussow. Based on this record, the trial court did not abuse its discretion in denying Western National's request for a new trial based on the references to the IME.

IV.

Western National also appeals from the jury verdict, arguing that the trial court erred in admitting the references to the IME. Based on our reasoning in the previous section, we conclude that the trial court did not err in admitting the references to the IME.

Affirmed.

[ ]1 Western National argues the trial court violated the expert witness rules of Minn. R. Evid. 702 and 703 when it allowed Dr. Lebow to testify about the IME. Rules 702 and 703 focus on the basis for an expert's opinion. Dr. Lebow's testimony on the IME did not bring it within these rules. The trial transcript reveals that Dr. Lebow only said he received the IME. The rest of his testimony indicates he did not rely on the IME in formulating his expert opinion.