Bianchi v. Nordby

BIANCHI, Appellant, Warren Sylvester City of

Orrin NORDBY and

Gibbon, Respondents.

No. C2-86-1776.

Supreme Court Minnesota. 2, 1987.

July Schade, Ulm, M. appel- New William

lant. Iverson, Phillips, Jon K. Steven M. Min- neapolis, respondents. Schmidt, Douglas Minneapolis, for ami- Lawyers cus curiae Trial Assoc. SCOTT, Justice. Plaintiff Warren brought Bianchi

personal injury against action Orrin Nord- Nordby’s employer, City of Gib- bon. The returned finding a verdict 88 n % negligent Nordby Bianchi 11%% negligent. also found that Bian- chi loss have including would capacity, expenses, medical pain disability. and/or discharged, After the was foreman, spoke to the who claimed that the misinterpreted the verdict. Bi- sought anchi’s counsel then to have the for questioning, recalled but the trial judge refused. Bianchi moved have the and, verdict corrected when that motion denied, judgment was moved for notwith- standing the verdict or a new trial. That also was denied. appealed appeals. the court sought pursuant That court certification 836 c.Pain disa- and/or Rules 3, the Minnesota of subd. Rule of Civil $2,500.00 Minnesota and bility? Procedure Appellate (1986), 2(b)(i) and 480A.10, subd. Statutes § (1) Over what granted certification. period of April On Sylvester Orrin Nord- time will officer, by, police a Gibbon and Warren pain such Patrick Bianchi were involved in a traffic and/or disa- brought personal accident. Bianchi inju- bility, any, if ry Sibley County action in District Court to years occur? 10 damages injuries. recover for his requested jury submitted both instructions requested special and a court, however, verdict form. The submitted a form similar to that found in 4 Minn. Dist. The

Judges Ass’n, Practice, read CIVIL verdict to the jury asked, (3d 1986). JIG Form “Ladies gentlemen ed. The com- jury, is pleted pertinent part your this as follows: verdict?” jurors All six responded: “Yes.” The court interpreted require this to dividing the amounts numbers of years fairly and money reducing of will sum What those amounts to value. compensate Warren Patrick adequately damages up to the date of for: this verdict receipt After of the verdict and notice to counsel, Bianchi of earn- had a conversation with a. Loss disagreement foreman. There is 357.50 ings? $ contact, who initiated the but there is about evidence Medical ex- b. juror that Bianchi and this were previously acquainted. juror The then penses? 841.65 $ counsel, called Bianchi’s who called the disa- c. Pain and/or court, suggesting problem with the ver- $9,600.00 bility? asking dict and the court to call the questioning. back for money fairly and 2. What sum of will compensate adequately Warren Patrick as are day,

Bianchi for such August next Bianchi’s Nordby’s counsel called counsel and reasonably certain to occur for: ad- potential vised him of that problem. Later earning a. Loss of day counsel, Nordby’s coun- $5,000.00 capacity? sel, and the trial court discussed the mat- court, however, ter. The trial recall refused to (1) Over what jury, declining to schedule a period because there was no time will suggestion misconduct. loss of such ca- pacity, if After the trial court refused to recall the any, years occur? Bianchi’s counsel contacted the and obtained from them affidavits as to a Medical ex- b. purported recording error. All $1,000,00 penses? completing their affidavits stated: “That in the cording Form, Special Verdict there was a re- (1) Over what purpose error” and “[t]hat period this Affidavit is to correct the error.” Ac- time will affidavits, cording to these the numbers in such medical the answers to 2 should number $25,000, $10,000, $25,000, have been expenses, respectively. years any, occur? applied this rule and denied Bianchi’s mo- brought seeking Bianchi then tion to correct the verdict. of the verdict on the basis of the correction jurors’ affidavits. The trial court denied This court has not juries allowed to im motion, concluding: peach their own verdicts when misun legal derstand the effect of those verdicts. face, ap- See, affidavits, e.g., Germain, on their Gardner v. these that pear the substitution of a new (1962); 117 N.W.2d 759 City Cullen v. Minneapolis, previously 102, for the one rendered 201 verdict Minn. 275 N.W. of Gardner, (1937). that would 414 can not succeed because In jury and amount to the found original impeachment of the negligence proxi decedent’s was a under the accident, can not succeed mate cause of the thought verdict and his to guise claim that it amounts estate could damages. of the still recover When of a clerical error. correction the discovered that this the was not case, they sought change to one of their answers, claiming they did not the understand his motion to correct verdict After “proximate agreed cause.” This court denied, judgment for that Bianchi moved was notwithstanding the changed verdict should not or, be because the in the alter- verdict jury’s misunderstanding legal “of the the native, this for a new trial. Bianchi based given effect to they be a verdict which ambiguity of in motion on the court’s and errors law and Gardner, to intended at execute.” 264 Minn. jury to in the instructions 762, 65, Similarly, 117 N.W.2d at in special the The trial court verdict form. Cullen, the jury verdicts, returned two one ambiguity no or error denied found against each Then, joint tortfeasor. after motion. discharge, the submitted affidavits saying they plaintiff intended that the re City of also Nordby and the Gibbon cover the sum of the two verdicts. This sought determining court order collateral “giving court stated that to the affidavits discounting sources, to interpretation the tiff, plain most favorable to value, taxing against Bi- costs they do not think any establish judgment offer of pursuant to the anchi clerical error only or mistake but a miscon The trial court considered they had made. ception part on the jury as to the premature motion when made because this it had not legal ally agreed of effect the verdicts which actu yet jury reduced the verdict to a Cullen, on and returned.” 201 considered itself with- judgment and later 105, Bj Minn. at 275 N.W. at 415. anchi had jurisdiction because out appeal. fected an may, however, Juries impeach the written record of See, the verdict. e.g., Septem- from both the appealed Pye, Paul v. 13, 135 Minn. 159 N.W. 1070 1986, motion to 2, denying order his ber Paul, (1916). In the jurors mistakenly by jury the and the error order correct a clerical signed wrong the verdict form and this 1986, 7, denying his October court held “that ‘a unanimous error of the notwithstanding the verdict judgment for jury in delivering the verdict already as alternative, trial. or, for a new in the unanimously agreed on in may be room’ by shown the affidavits of the presented by appeal: issues are this Two jurors themselves as a basis for application (1) court err in its to Did the trial refusal by relief ordering a new trial.” Id. at correct verdict? (citation 159 at N.W. 1071 omitted); see Bauer, also 244 Minn. at 70 N.W.2d at in Did the trial court err its instruc- (“affidavits 275-76 received to may be regarding special ver- tions to dict form and that, by show a clerical error of in verdict the verdict returned in court was itself? not the verdict unanimously agreed upon by them”). This stressed, court has how general ever, 1. The rule is that a ver- distinct line must at “[a] all impeached after the may dict not be times be drawn impeachment between an sought discharged the facts has when the written record of the verdict and an been in verdict itself. attempted shown inhere impeachment of the verdict it Kummer, 488, 490-91, Id., v. 244 Minn. Bauer self.” 70 N.W.2d at (emphasis 276 in original). 275 The trial court Grabill, verdict, change a 392 N.W.2d 52 (Minn.App.1986), a motion “Whether grant Arney (Minn. Helbig, it and to vacate N.W.2d or in the alternative App.1986), relief from the trial court trial, merely for stated “that calls those newa reducing to two cases mandate a the verdict refusal error Court clerical grant attempt plaintiff im to The trial court requested.” an the relief writing, or constitutes problem ques analysis with this primarily is that the itself peach tion already at had concluded that this of fact.” Id. was not a deter Schwartz situation the trial court be at 276. When N.W.2d mined this factual fore it Bianchi’s counsel question, things it had before did those which the trial court jurors, six determined violated affidavits all identical hearing procedures. We there concluded: court fore find no evidence of attorney miscon duct in this case. face, appear affidavits, their on [Tjhese a new verdict a substitution and can rendered previously one Here, Bianchi’s attorney requested amount to that would succeed because hearing, a which was by refused the trial original and impeachment judge, before contacting the other guise of the under not succeed can claim clerical and obtaining their grant affidavits. The a correction of to that it amounts ing of a hearing Schwartz is within the error.” discretion of courts, the trial they but are encouraged to be liberal in granting such hearings. requested, Bianchi’s counsel at least Zimmerman, 259 N.W.2d at twice, 262-63. should use that the trial court recall the We have stated that “trial courts regarding verdict, them the do so. The their discretion good judg prevent ment to court but trial court stated that “unless there is some trial declined to the necessity of such ac tions [interrogating juror or telephoning him wrong doing, purpose that once evidence are of gathering evidence for a discharged, authority request no this Court has for a hearing] Schwartz argues should jury.” to reconvene that be liberal in granting hearing.” could, Olberg the trial court and indeed v. Minneapolis Co., Gas 291 Minn. should, question- have recalled the N.W.2d 424-25 Here, ing. the trial court could have recalled the jurors for questioning if he believed there might have been a error, clerical but he did court, however, This has referred to not abuse his by discretion doing so. “clerical error which can be corrected through hearing” a Schwartz and distin- guished this from a situation in ju- which argues Bianchi also that both the rors attempting impeach are to their ver- verdict form and the court’s instruc- dict. Transp. Co., Zimmerman v. tions respect Witte with to that form were ambig- (Minn.1977). 259 N.W.2d This uous. He claims proposed his suggests that a type hearing used, Schwartz had is been this ambiguity would have permissible error, to correct clerical been but avoided. The court’s form had two the trial court must first blanks possible determine for each type of future might whether there ror or whether impeach damage, have been clerical er- one for the money sum of and one attempting is for form, period of time. proposed Bianchi’s its own verdict. hand, on the other had 51 blanks for type, each allowing specify how much damage future would occur in each year. The trial rejected court Both Bianchi and the trial court are proposed special verdict form being “as concerned with proceed whether or not the completely application unrealistic in its ing would hearing. be Schwartz When it unnecessarily cumbersome in its execu- denied Bianchi’s motion to correct the ver- tion.” diet, the appeared rely on two appeals court of cases that denied the mov- contends that the form used is ant relief when the ambiguous pro because the thought the cedure was not Citing followed. dollars Miley v. were to be multiplied by years, thought and the court the dollars Subd. 3. damages; were to Future evidence. by years. divided The trial court amount of all damages, future in- cluding economic, stated: noneconomic and in- compute You should the amount of tangible such loss reasonably occur, certain to damages in each category and [future] must be ascertained at the time of trial determine period over what of time such without reference to projected inflation- future doing if any, will occur. In ary or noninflationary changes. Evi- so, you should enter monetary dence of noninflationary changes in earn- amount, based on the value of today’s ings earning or capacity that are reason- any dollar without deduction for the in- ably certain to admissible, occur are terest capacity of the money in this evidence is limited to present the future or any adjustment for infla- value of the changes without re- tion. You are specifically gard instructed that to inflationary changes. Projected any adjustments for present discount to increases in earnings or earning capacity value, inflation, or other similar dependent economic upon general economic statis- factors will be made the Court to the tics are not admissible. required by extent law. Subd. 4. Discount rate. The award required instructions “is calculated What under subdivision 3 must be charge convey as a whole a clear reduced to value at the time of understanding of trial by application and correct the law of a discount rate * * * equal latitude must be case. allowed the trial court in the Considerable to: language used average rate of interest on long as the substance of the law is so judgments under section 549.09 for the correctly stated.” Barnes v. Northwest years five calendar ing immediately preced- Airlines, trial, the commencement of rounded (1951). recently, More this court one-tenth, to the nearest less that if a has stated reversal will follow preferred party simply would have other language “provided court’s instruction the average the increase in the Con- appropriately stated the law.” Alholm v. sumer Price Index for all Urban Consum- (Minn.1986). Wilt, 394 N.W.2d ers, items, published all as by the United Department Labor, States Labor one-tenth, Bureau of Statistics, rounded to the nearest Thus, the whether the becomes five-year for the same period. and, instructions were erroneous. Bianchi especially, sociation If Department the Labor statistics are Lawyers the Minnesota Trial As- published by trial, not court shall the time of the (MTLA), curiae, argue amicus employ average the increase interpreting that the court erred in Minn. over the most five-year period recent require 604.07to Stat. the court to do the § in published available the statistics. discounting. Bianchi also claims that even In no may instance the discount rate if judge discounting, the is to do the the percent fall below two percent. or rise above six instructions and the verdict form here do not contain sufficient information to allow him to do so. MTLA also claims 604.07, Minn.Stat. subd. § that, discounting, no matter who does statute, (1986), the unconstitutional, Minn.Stat. 604.07 is § Nordby and the Minnesota Defense properly recognizes but (MDLA) Lawyers argue Association that that That statute issue is not before the court. court, jury, perform not the is to provides part: in discounting required by subdivision 4. They argument following on the base required. In all 2. Discount Subd. requires factors: that the statute that the seeking damages personal in- actions made reference to award be projected inflationary changes”; “without death, wrongful or of means loss noninflationary or damages, of all future support, awards judge could discount economic, in- including noneconomic entering judgment; the “award” before loss, occur tangible reasonably certain to 4(2) phrase uses the and that subdivision as value must discounted employ.” “the court shall See also provided this section. Ass’n, Judges Practice, Dist. Minnesota (3d 1986). MTLA, appreciate CIVIL JIG 162 ed. I difficulty on for the trial hand, argument the other bases its bar to legisla- accommodate the new tort discounting should do the on the fol- tion, my but concern is verdict forms lowing factors: difficulty providing esoteric, may good become lose will the court with sufficient information to ac- jurors. ju- interest of We should ask award; curately statutory discount the rors to answer understandable ultimate language trial”; legislative “at time of issues, fact and the simpler shorter and 604.07; history prior of Minn.Stat. § practice. common law Both sides are cor- verdict, the better. rect in gives guid- that the statute little ance, argument but MDLA’s based on the language employ” “the court shall suasive. Here, presented no evidence detailed, support year-by-year, spe A cial verdict form he submitted. different may appropriate, have been Ass'n, Judges

4see Minn. Dist. Minnesota, STATE of Practice, 7, comment, CIVIL JIG Form petitioner, Appellant, provide the court with the information nec essary discounting to do the if there were support may evidence to have been clearer if the word “total” had it. The form used CROCKER, Respondent. Earl William category inserted each of fu been ture not before No. C4-86-1312. as form used was Supreme Court of Minnesota. ambiguous. Sibley County The decisions of the Dis- July affirmed, are and this trict Court matter is judgment. for entry

remanded SIMONETT, J., specially. concurs SIMONETT, (concurring special- Justice

ly). agree written,

I with what has been like

would to add that I it believe will be a

rare case where pro- credible evidence is segregate quantums

duced to of future

damages year for each into the future. suffering

Pain and and similar kinds of

future seldom lend themselves to

per quantification annum any more than to

per quantification. diem See Ahlstrom v.

Minneapolis, St. P. & Sault Ste. Marie R.

Co., 1, 29-30,

(1955) (fragmenting damages over a expectancy, though

son’s life illuminating,

may misleading). This deny is not to reality nor the need awards; adequate

for fair and but it needs recognized law, in projecting future, necessarily deals with reason- approximations.

able Attempts to refine approximations

these in a search for abso- accuracy

lute artificiality. leads instead to

Case Details

Case Name: Bianchi v. Nordby

Court Name: Supreme Court of Minnesota

Date Published: Jul 2, 1987

Citation: 409 N.W.2d 835

Docket Number: C2-86-1776

Court Abbreviation: Minn.