Christopher Rouse, Appellant (), Respondent (A07-321), vs. Craig J. Marshall, Respondent (), Appellant(A07-321).

Christopher Rouse, Appellant (A06-2081), Respondent (A07-321), vs. Craig J. Marshall, Respondent (A06-2081), Appellant(A07-321). A06-2081, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2081

A07-321

 

Christopher Rouse,

Appellant (A06-2081),

Respondent (A07-321),

 

vs.

 

Craig J. Marshall,

Respondent (A06-2081),

Appellant (A07-321).

 

Filed September 4, 2007

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. C6-05-6193

 

Charles D. Slane, Terry & Slane, P.L.L.C., 7760 France Avenue South, Suite 610, Bloomington, MN 55435 (for appellant/respondent Christopher Rouse)

 

Susan D. Thurmer, Andrea E. Reisbord, Cousineau McGuire Chartered, 1550 Utica Avenue South, Suite 600, Minneapolis, MN 55416-5318 (for respondent/appellant Craig J. Marshall)

 

            Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In these consolidated appeals, plaintiff-appellant Christopher Rouse challenges the district court's denial of his motion for a new trial or additur, arguing that the jury's verdict denying past and future pain and suffering is not reconcilable with its award of past and future medical expenses.  Defendant-appellant Craig Marshall challenges the district court's denial of his motion for costs and disbursements under Minn. R. Civ. P. 68, arguing that the district court erred by considering costs incurred by plaintiff after defendant's rule 68 offer was rejected.  We affirm in part, reverse in part, and remand. 

D E C I S I O N

I.

            Plaintiff argues that the district court abused its discretion by denying his motion for a new trial or additur because the jury's factual findings cannot be reconciled with its non-award of general damages.  We disagree.

            Plaintiff was injured in a car accident with defendant.  Defendant admitted liability, and the issue of damages was tried before a jury.  The jury made factual findings that plaintiff's medical expenses were caused by the crash and that future medical expenses are reasonably certain to be required as a result of the crash, but did not award general damages for pain or emotional distress.  Plaintiff moved for a new trial or, in the alternative, additur, on the basis that the jury's decision denying damages for past and future pain and suffering could not be reconciled with its award of all past and some future medical expenses.  The district court denied the motion, noting that the jury could have concluded that any pain, suffering or emotional distress suffered by plaintiff was too minimal to justify the payment of damages or that "[p]laintiff had pain, suffering, and emotional distress but that his failure to treat to the extent authorized by his physicians was a cause of his pain such that no money damages were appropriate."

            We review the adequacy of a jury's verdict for an abuse of discretion. Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999).  "On appeal from a denial of a motion for a new trial, an appellate court should not set aside a jury verdict unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict."  Id. (quotation omitted).  A jury's verdict should stand if its special verdict answers "can be reconciled on any theory."  Id. When conflicting medical testimony regarding the nature and extent of a plaintiff's injuries is presented to the jury, great deference is given to the jury's verdict.  Id.

            Here, the parties presented conflicting expert medical testimony regarding the extent and cause of plaintiff's injuries.  Plaintiff's treating physician testified that plaintiff sustained a torn rhomboid muscle and bulging discs in the thoracic spine and that these injuries were caused by the accident.  Plaintiff's physician also testified that he detected a scoliatic curve in plaintiff's thoracic spine that was unrelated to the accident, but that this condition did not contribute to plaintiff's pain.  Defendant presented the expert testimony of its physician who performed an adverse medical evaluation on plaintiff. Defendant's expert testified that "there [are] no medical facts to indicate that [plaintiff] sustained any type of permanent injury to himself."  He also testified to the basis for his opinion, stating:

It's not just one thing.  The type of motor vehicle accident he was in; the lack of seeking medical care within a reasonable length of time after the motor vehicle accident with the symptoms that he now presents with; he has no abnormal objective X-ray evidence of any trauma or injury to his thoracic spine or to his shoulder.  The MRI has been normal. The ultrasound has been normal.  We do know that he has this structural abnormality of his thoracic spine.  So what he sustained from the accident was a myofascial strain of his cervical spine and possibly a myofascial strain of his thoracic spine.  And I would anticipate that after three to six weeks, that he would become asymptomatic in regards to that injury.

 

            Defendant also presented evidence that plaintiff's injuries had a minimal impact on his daily life.  Following the accident, plaintiff continued to work approximately 10 hours per day or 55 hours per week.  Plaintiff continued to run, play golf, and play racquetball following the accident, though not as strenuously.  Plaintiff also continued to travel and socialize following the accident and no treating physician ever imposed any restrictions or limitations on his recreational or vocational activities.

            This case presents facts analogous to those in Raze v. Mueller, 587 N.W.2d 645.  In Raze, the plaintiff sought damages relating to a shoulder injury, the causation of which was contested.  Id. at 647-48.  The jury awarded past medical expenses, some future medical expenses, and lost wages, but did not award general damages for pain and suffering.  Id. at 646.  The supreme court affirmed the jury verdict, stating that the jury reasonably could have concluded

that the accident caused no injury to her right shoulder; that she did not suffer from any permanent injury . . . ; that some of the problems with her neck, back, and shoulders were the result of her pre-existing condition or a functional overlay; and that, while she might require some minimal follow-up care related to the accident, that care would be fully compensated by awarding some future medical expenses to alleviate any residual discomfort.

     

Id. at 648-49.

            Like the defendant in Raze, defendant here presented expert medical testimony suggesting that some of plaintiff's injuries were caused by a preexisting condition.  The jury's verdict here, like the verdict in Raze, is reconcilable because the jury could have believed that plaintiff would suffer some residual discomfort in the future, but that such discomfort would be adequately compensated by the award of future medical expenses such that damages for future pain and suffering were unwarranted.  Such a verdict by the jury is reasonable because the jury was presented with conflicting medical testimony as well as evidence that any injuries suffered by plaintiff were not severe enough to limit plaintiff's daily activities.

            As the district court noted, the jury's verdict may also have been based on a belief that plaintiff was partially responsible for the extent of his injuries because he did not follow the recommended courses of treatment.  The district court instructed the jury that a person has a duty to act reasonably in getting care and treatment for an injury and is limited to those damages he would have experienced had he acted reasonably in getting treatment or care.  

            At trial, defendant presented evidence that in January 2004, plaintiff's chiropractor recommended treatment three times per week for one to three weeks, twice a week for four to six weeks, and once per week for three to six weeks.  The record indicates that plaintiff had one chiropractic treatment in January and did not return until March when he underwent seven additional chiropractic treatments.  Later, a physician recommended that plaintiff participate in an active rehabilitation program consisting of physical therapy 2 to 3 times per week for six weeks.  The record indicates that plaintiff completed only 5 of the recommended 12 to 24 treatments.  Plaintiff's failure to complete the recommended treatments was a central theme in defendant's closing argument.

            Based on this evidence, the jury could have concluded that plaintiff had pain and suffering, but his failure to follow treatment recommendations was a partial cause of his pain such that no additional compensation beyond medical expenses was appropriate. Such a verdict is reasonable because Minnesota law has long held that a plaintiff has a duty to mitigate damages by acting reasonably in obtaining treatment.  Adee v. Evanson, 281 N.W.2d 177, 180 (Minn. 1979).

            We conclude that the district court did not abuse its discretion by denying plaintiff's motion for a new trial or additur because the jury's verdict is reconcilable based on evidence that plaintiff's injuries were partially caused by a preexisting condition and did not significantly interfere with his daily activities, or based on plaintiff's failure to mitigate the pain and suffering he experienced.

II.

            Defendant challenges the district court's denial of its motion for costs and disbursements pursuant to Minn. R. Civ. P. 68, arguing that the district court improperly included costs and disbursements incurred by plaintiff after defendant's rule 68 offer was rejected.  We agree.

            On June 8, 2006, defendant made an offer of judgment, stating that "pursuant to Rule 68" defendant "does hereby offer to allow judgment to be entered against him in the amount of [$38,167.84] inclusive of all costs and disbursements."  Plaintiff refused the offer.

            Plaintiff's total costs and disbursements incurred through June 8, 2006, were $6,416.76.  But by the time the jury trial concluded, plaintiff's costs and disbursements had increased to $11,414.19.  When the costs and disbursements incurred by plaintiff through June 8, 2006, are added to the stipulated final judgment, the total is less than defendant's offer of judgment, entitling defendant to an award of costs and disbursements.  Minn. R. Civ. P. 68. But the district court concluded that because defendant drafted the offer of judgment and "did not specify which costs and disbursements were included in the offer[,] . . . all of plaintiff's costs and disbursements, including those made after the offer of judgment" would be deducted from the offer of judgment to determine if the offer was more favorable than the stipulated final judgment. Because defendant's offer was less favorable than the stipulated final judgment when all of plaintiff's costs and disbursements were included, the district court determined that defendant was not entitled to an award for costs and disbursements.

              Rule 68 provides that:

[A]ny party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party.

 

Minn. R. Civ. P. 68.  "If the offer is rejected and the final judgment entered is not more favorable to the offeree than the offer, the offeree must pay the offeror's costs and disbursements.  This cost-shifting mechanism was designed to encourage settlement and decrease litigation."  Collins v. Minnesota School of Business, Inc., 655 N.W.2d 320, 324 (Minn. 2003).  A district court's legal determination regarding rule 68 offers of judgment is reviewed de novo.  Farmer's State Bank of Darwin v. Swisher, 631 N.W.2d 796, 799 (Minn. 2001).  Drafters of offers under rule 68 control which claims they include in the offer, and courts construe ambiguous language in a rule 68 offer against the drafter.  Collins, 655 N.W.2d at 328.

            Here, defendant's offer stated "pursuant to Rule 68" defendant "does hereby offer to allow judgment to be entered against him in the amount of [$38,167.84] inclusive of all costs and disbursements."  Plaintiff argues that the offer's language "inclusive of all costs and disbursements" supports the district court's determination that costs and disbursements incurred after the offer was rejected should be considered in determining the amount of the net offer.  We disagree.

            The cited language does not include costs and disbursements yet to be incurred because the word "all" is modified by the preceding language in the offer, which states that the offer is made "pursuant to Rule 68."  Rule 68 provides that the offeror may offer "to pay or accept a specified sum of money, with costs and disbursements then accrued."  Minn. R. Civ. P. 68 (emphasis added).  We conclude that the plain language of defendant's offer does not contemplate costs and disbursements yet to be accrued because it expressly incorporates rule 68, which clearly states that the offer of judgment includes a "specified sum of money" together "with costs and disbursements then accrued."

             The district court erred by including costs and disbursements accrued after the offer of judgment was rejected and absent this error, the stipulated net judgment is less than defendant's offer of judgment.  Therefore, we reverse the district court's denial of defendant's motion for costs and disbursements and remand to the district court for a determination of the costs and disbursements due to defendant.

            Finally, because we are reversing the district court's award of costs and disbursements to plaintiff, we need not address defendant's argument that the district court erred in awarding certain costs to plaintiff.

            Affirmed in part, reversed in part, and remanded.