This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Danil J. Drake, et al.,



Reile's Transfer and Delivery, Inc.,


The Minnesota Worker's Compensation Assigned Risk Plan,

as administered by Wausau Insurance Company,


Filed January 19, 1999


Short, Judge

Becker County District Court

File No. C9960095

Steven J. Cahill, Cahill & Marquart, P.A., 403 Center Avenue, Suite 200, P.O. Box 1238, Moorhead, MN 56561 (for appellants)

R.B. McLarnan, James E. Nicolai, McLarnan, Hannaher, Vaa & Skatvold, P.L.L.P., Norwest Bank Building, 730 Center Avenue, P.O. Box 8, Moorhead, MN 56560 (for respondent)

Dale J. Evenson, Cousineau, McGuire & Anderson, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for intervenor)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Holtan, Judge.[*]


SHORT, Judge

On July 2, 1993, Danil Drake was injured while assisting an employee of Reile's Transport and Delivery, Inc. (the company) in off-loading a large kitchen range from the bed of a delivery truck. Drake and his wife sued the company for negligence. After a seven-day trial, the jury returned a special verdict, finding Drake and Reile's each 50% responsible for Drake's injuries and awarding appellants $355,000 in damages. After the trial court reduced this award by 50%, Drake moved for additur or a new trial on damages. On appeal from the trial court's denial of his post-trial motion, Drake argues the trial court erred in failing to instruct or permit his counsel to ask the jury not to consider Drake's worker's compensation award in assessing damages. We affirm.


The question of whether a verdict is adequate rests in the trial court's discretion and will not be overturned absent an abuse of discretion. Haavig v. Hidding, 298 Minn. 192, 195, 214 N.W.2d 222, 223 (1974). Additur or a new trial on damages, based upon the inadequacy of a verdict, should be ordered only when it is clear the verdict was rendered on account of passion or prejudice. See Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981) (noting new trial and damages ordered only where verdict so inadequate it is only explained by prejudice and compromise); Genzel v. Halvorson, 248 Minn. 527, 534, 80 N.W.2d 854, 859 (1957) (recognizing additur as substitute for new trial on damages to avoid expense).

The jury awarded only one-third of Drake and his spouse's damages. Drake believes the jury improperly reduced their damages based on his receipt of two-thirds of his salary from worker's compensation benefits. On appeal Drake argues the trial court erred in refusing to instruct the jury to disregard worker's compensation issues. Although it is general error to admit evidence of receipt of worker's compensation only to convey that information to the jury, no error results from a refusal to instruct the jury to disregard this evidence where specific findings do not support the proposed instruction and no abuse of discretion is shown. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985); Guile v. Greenberg, 192 Minn. 548, 555-56, 257 N.W. 649, 652-53 (1934).

The record shows: (1) although the trial court noted that "worker's compensation has come up," neither party made specific reference to "worker's compensation" during the trial; (2) any implied reference to Drake's worker's compensation benefits were made solely by Drake and his spouse; (3) the trial court instructed the jury "not to consider the possible effect of your answers to other questions when you determine damages;" and (4) the trial court also informed the jury "[t]he fact that Danil Drake actually received his salary for all or part of the time is not to be considered." Given these facts, the trial court sufficiently addressed worker's compensation issues in its instructions. See Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (noting trial courts allowed broad discretion in selecting language in jury instructions); Isler v. Burman, 305 Minn. 288, 296, 232 N.W.2d 818, 822 (1975) (stating "[o]ne who procures error may not assert such error as the basis for obtaining a new trial"); Meagher v. Kavli, 256 Minn. 54, 63, 97 N.W.2d 370, 376-77 (1959) (recognizing trial court's refusal to give instructions not error where evidence will not sustain findings of fact necessary to make instruction applicable).

Moreover, even if the trial court's instructions did not sufficiently address worker's compensation issues, the jury's decision to reduce Drake's claimed damages in its special verdict is supported by evidence in the record that shows: (1) Dr. Clayburgh testified Drake's back problems dated back to 1986; (2) two weeks before his accident, Drake injured his back lifting a television; (3) Drake failed to comply fully with Sister Kinney Pain Clinic's follow-up program; (4) despite doctors' recommendations, Drake chose not to undergo a discogram to determine whether he needed a surgery that likely would have reduced his pain level; and (5) a car accident in November 1994 may have exacerbated Drake's back problems. See Law v. Essick Mfg. Co., 396 N.W.2d 883, 888 (Minn. App. 1986) (affirming denial of motion for new trial where evidence sufficiently supported verdict despite erroneously admitted testimony), review denied (Minn. Jan. 27, 1987). Although Drake contends this evidence cannot explain the jury's systematic reduction of his stipulated medical expenses, those stipulated expenses covered treatment of injuries that may have been more extensive because of his pre-existing condition. Thus, despite the jury's across-the-board one-third reduction, the verdict is supported by evidence of Drake's pre-existing back problem and failure to mitigate damages. Under these circumstances, the trial court did not abuse its discretion in refusing to further instruct or permit appellants' counsel to instruct the jury to disregard worker's compensation evidence. See Kelley v. Chicago, Burlington & Quincy R.R. Co., 142 Minn. 44, 49, 170 N.W. 886, 888 (1919) (noting reviewing court must view verdict in light of presumption that jury obeyed instructions).


[*] Retired judge of the district court, serving as a judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.