Terri Ann Ristow, et al., Respondents, vs. Catherine O'Brien Hewitt, Appellant.

This opinion will be unpublished and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-96-1686

Terri Ann Ristow, et al.,

Respondents,

vs.

Catherine O'Brien Hewitt,

Appellant.

Filed June 10, 1997

Affirmed

Willis, Judge

St. Louis County District Court

File No. C194602103

Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for Respondents)

Robert E. Mathias, 1217 East First Street, Duluth, MN 55805 (for Appellant)

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

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

WILLIS, Judge

A jury awarded respondent Terri Ristow $52,000 in damages resulting from appellant Catherine Hewitt's negligence in an automobile accident. Hewitt appeals from the district court's order denying her motion for a judgment notwithstanding the verdict, arguing that (1) the award for future medical expenses is inconsistent with the jury's finding that Ristow did not sustain a permanent injury, (2) the evidence does not support the $11,000 award for future loss of earnings, and (3) Minn. Stat. § 65B.51, subd. 3, does not authorize recovery for future economic injury. We affirm.

FACTS

On April 21, 1993, Hewitt's vehicle struck Ristow's vehicle, which was stopped at a red traffic light. Ristow, who had been receiving intermittent chiropractic care for approximately 20 years, alleges that after the April 1993 accident she experienced new symptoms, including headaches in the back of her head, tingling and loss of sensation in her arm and in two fingers, constant discomfort, and a decreased range of motion in her neck. She claims that her injuries interfere with her job duties because her symptoms become aggravated if she sits for long periods of time or lifts her arms for any length of time.

The district court ruled that Hewitt was negligent as a matter of law. By special verdict, the jury found that Hewitt's negligence injured Ristow, but that the injury is not permanent. The jury awarded Ristow (1) $7000 for reasonable medical expenses to the time of trial, (2) $20,000 for future reasonable medical expenses, (3) $11,000 for future loss of earning capacity, (4) $7000 for pain, disability, and emotional distress to the time of trial, and (5) $7000 for future pain, disability, and emotional distress. Hewitt moved for a judgment notwithstanding the verdict or, alternatively, a new trial on the issue of damages. The district court denied Hewitt's motion, concluding that a finding of permanent injury is not a prerequisite for recovery of future damages and that Ristow met the threshold to seek general damages. Hewitt appeals from that order.

D E C I S I O N

The decision whether to grant a judgment notwithstanding the verdict (JNOV) is a question of law. Edgewater Motels, Inc. v. Gatze, 277 N.W.2d 11, 14 (Minn. 1979).

A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony for the adverse party. Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

Answers to special verdict questions will be set aside only when the answers cannot be reconciled in any reasonable manner consistent with the evidence and the fair inferences therefrom. Buttz v. Bergeson, 392 N.W.2d 917, 920 (Minn. App. 1986). The district court's decision whether to grant a new trial on the ground of excessive damages will not be overturned absent an abuse of discretion. Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).

1. Future Medical Expenses.

Hewitt argues that the jury award of $20,000 for future medical expenses is inconsistent with the jury's finding that Ristow did not sustain a permanent injury. Such a finding, however, is not required for an award for future medical expenses.

There are two requirements in the award of future medical expenses. The first is whether future damages in the form of future medical treatments will be required. The second requirement is that not only the necessity, but the amount of the damages be established by expert testimony. In particular, "the plaintiff must prove the reasonable certainty of such expenses by a fair preponderance of the evidence."

Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990) (citation omitted), review denied (Minn. Feb. 21, 1990); see also Carnahan v. Walsh, 416 N.W.2d 187, 188 (Minn. App. 1987) (concluding that award of $3000 for future medical expenses was not inconsistent with jury finding of no permanent injury where doctors testified that plaintiff had "chronic" or recurring condition), review denied (Minn. Feb. 12, 1988).

Hewitt incorrectly relies on Marose v. Hennameyer, 347 N.W.2d 509 (Minn. App. 1984). There we held that the defendants were entitled to summary judgment on the plaintiff's claim for future medical expenses because the plaintiff relied on her own affidavit that she would have future medical costs and that her injuries could be permanent, while the defendants introduced evidence that the plaintiff would not exhaust her basic economic loss benefits. Id. at 511. Unlike the plaintiff in Marose, Ristow offered expert medical testimony to support her claim for future medical expenses.

There was conflicting expert testimony regarding the permanency of Ristow's injury, so that the jury could have believed that her injury is not permanent, but rather is chronic. See Carnahan, 416 N.W.2d at 188 (defining chronic condition as one of long continuance that is not necessarily permanent). Dr. Robert Torgrimson testified that Ristow's chiropractic visits, which cost approximately $52 each, increased from three to seven per year before the accident to twelve to fifteen per year after the accident. The jury could have found that Ristow will undergo 12 additional chiropractic visits per year because of the April 1993 accident, so that her future chiropractic expenses attributable to that accident will be $24,960 ($52 x 12 visits x 40-year life expectancy). The evidence supports the jury award of $20,000 for future medical expenses.

2. Future Loss of Earnings.

Hewitt contends the evidence does not support the jury award of $11,000 for future wage loss because Ristow's work status has improved to full-time since the April 1993 accident, and there is no evidence that she has been rejected for a better secretarial position because of her injuries.

The impairment of earning capacity is an item of general damages which does not require specific proof of actual earnings or income either before or after the injury. Because future damages such as this are impossible to prove with absolute certainty, the rule is that recovery may be had if future damage is reasonably certain to occur.

Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987) (citation omitted). Recovery for loss of earning capacity "is based on factors including the plaintiff's age, life expectancy, health, occupation, talents, skill and training." Sylvester v. Gleason, 371 N.W.2d 573, 575 (Minn. App. 1985).

From April 1991 through January 1995, Ristow worked in various temporary positions at the University of Minnesota-Duluth (UMD), including senior secretary, principal secretary, and executive secretary. Since January 1995, Ristow has been employed full-time as a senior office assistant, which involves more receptionist duties than secretarial duties. As of July 1996, a senior office assistant earned $1442 per month, a senior secretary earned $1489 per month, a principal secretary earned $1806 per month, and an executive secretary earned $2081 per month. There was testimony that Ristow has the qualifications necessary for the higher-paying secretarial positions, but that the typing demands of those positions would aggravate her symptoms on a long-term basis.

The jury could have found that, even though Ristow does not have a permanent injury, she does have a chronic injury that will prevent her from working in a higher-paying position with more demanding typing duties. If Ristow, who was 45 years old at the time of trial, works full-time as a senior office assistant until 62, the age at which she expects to retire, her earnings will be affected for 17 years. Assuming that salary differentials at UMD remain the same during that time, there will be a deficit between Ristow's income and the income she could realize from a secretarial position ranging from $9588 ($47 per month x 12 months x 17 years) for senior secretary to $130,356 ($639 x 12 x 17) for executive secretary. The evidence supports the $11,000 jury award for Ristow's loss of future earning capacity due to the April 1993 accident.

3. Authority for Recovering Future Economic Loss.

The No-Fault Automobile Insurance Act (the Act) limits injured parties' rights to recover general damages for torts. Marose, 347 N.W.2d at 511. Hewitt correctly argues that Minn. Stat. § 65B.51, subd. 3 (1996), authorizes the recovery of damages for "noneconomic detriment" if the plaintiff meets certain thresholds, but it does not authorize the recovery of future "economic loss." Section 65B.51, subdivision 3, refers only to damages for noneconomic detriment, such as pain, suffering, and emotional distress, and not to damages for future medical expenses and loss of earning capacity. See Minn. Stat. § 65B.43, subd. 8 (1996) (defining noneconomic detriment as dignitary losses, such as pain and suffering, loss of consortium, and inconvenience). Uncompensated "economic loss" is recoverable under Minn. Stat. § 65B.51, subd. 2 (1996).

Hewitt argues that Ristow is not entitled to damages for future economic loss because such damages are inconsistent with the Act's stated purpose of preventing double recovery. See Minn. Stat. § 65B.42 (1996) (stating purposes of the Act). Hewitt claims the present judgment does not bar a future claim for medical expenses or loss of earnings against Ristow's no-fault carrier. In a negligence action,

the court shall deduct from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible.

Minn. Stat. § 65B.51, subd. 1 (1996). Here, the district court deducted a $5,300.50 "collateral offset" from the jury award, which apparently represents the basic economic loss benefits paid or payable to Ristow by her own insurer. Any remaining no-fault exposure to Ristow's insurer for future economic damages will not accrue until Hewitt's liability for these damages pursuant to the judgment is exhausted. See Ferguson v. Illinois Farmers Ins. Group Co., 348 N.W.2d 730, 733 (Minn. 1984) (concluding that, consistent with purpose of preventing double recovery, no-fault insurer receives credit in the amount of future medical expenses awarded by jury, and plaintiff may recover from no-fault insurer after she has accumulated future medical expenses that exceed net award of future medical damages from tortfeaser).

Affirmed.