Eric John Blehr, Respondent, vs. Jacki Sue Anderson, Appellant.
A20-0691
STATE OF MINNESOTA IN COURT OF APPEALS
Filed January 11, 2021
Hooten, Judge
Douglas County District Court File No. 21-CV-18-1471
Courtney A. Lawrence, Matthew J. Barber, Schwebel Goetz & Sieben, P.A., Minneapolis, Minnesota (for respondent)
Thomas D. Jensen, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Frisch, Judge; and Kalitowski, Judge.*
- I. A written notice of claim under
Minn. Stat. § 549.09, subd. 1(b) (2018), does not require a demand for a specific amount of money, but instead must contain sufficient information, in conjunction with the information known to the noticed party, to allow the noticed party to determine its potential liability from a generally recognized objective standard of measurement. - II. Preverdict interest on additur damages is appropriate under
Minn. Stat. § 549.09 (2018) because additur increases the verdict.
HOOTEN, Judge
In this appeal from judgment entered following a jury trial on respondent‘s personal injury claims, appellant challenges the district court‘s awards of (A) preverdict interest, and (B) costs and disbursements. We affirm.
FACTS
In July 2016, Patrick Anderson and respondent Eric Blehr were involved in a two-vehicle crash on Highway 55. The crash occurred when Anderson, who was driving a John Deere Gator all-terrain vehicle, attempted to turn left from Highway 55 directly into respondent‘s path of travel. Respondent, who was driving a Pontiac passenger vehicle, was seriously injured in the crash, and Anderson was killed.
Respondent sent Anderson‘s automobile insurer a letter dated January 26, 2017 (the January 26 letter). The January 26 letter was sent to an insurance claims office and was printed on the letterhead of the law firm retained by respondent. The January 26 letter stated that the law firm had been retained to represent respondent in connection with the July 2016 accident, and sought to “confirm the existence and amount of coverage.” The January 26 letter also sought the claim number and any information that the insurance claims office had in its possession regarding the claim. In August 2018, respondent commenced this action against appellant Jacki Sue Anderson, personal representative of the Estate of Anderson. Following a jury trial, both Anderson and respondent were found to be at fault. The jury apportioned 75% of the fault to Anderson, and 25% to respondent. The jury then awarded damages to respondent in the amount of $90,301.39.
Respondent petitioned for taxation of costs and disbursements and moved for preverdict interest, additur or a new trial regarding his past general damages, and costs under
After appellant accepted the additur, the district court entered its amended findings of fact, conclusions of law, and order for judgment. The district court determined that the January 26 letter “was sufficient to constitute a ‘notice of claim‘” under
In addition to preverdict interest, the district court determined that respondent was entitled to $24,729.95 in costs and disbursements. The district court also found that the rule 68 amount of $95,000 offered to respondent “is less favorable than [respondent‘s] award of $110,880.92, which sum was determined by adding the net award of $78,901.04 to [respondent‘s] taxable costs and disbursements of $10,377.82 through October 22, 2019, and his preverdict interest of $21,602.06.” The district court concluded that because respondent‘s “award is greater than his Rule 68 offer, he is entitled to double the costs incurred.” The district court, therefore, entered judgment in favor of respondent in the amount of $139,714.36. This appeal follows.
- I. Did the district court err in determining the amount of preverdict interest?
- II. Did the district court abuse its discretion in awarding costs and disbursements?
ANALYSIS
I. Did the district court err in determining the amount of preverdict interest?
Appellant challenges the district court‘s award of preverdict interest, arguing that the district court erred by (A) concluding that the January 26 letter constituted a “notice of claim” for purposes of triggering the date on which to begin calculating preverdict interest; (B) calculating preverdict interest at a rate of 10%; and (C) awarding preverdict interest on the additur damages.
Preverdict-interest awards are reviewed de novo. Duxbury v. Spex Fees, Inc., 681 N.W.2d 380, 390 (Minn. App. 2004), review denied (Minn. Aug. 25, 2004). We also apply a de novo standard of review to a district court‘s interpretation of the preverdict-interest statute. Miller v. Soo Line R.R., 925 N.W.2d 642, 655 (Minn. App. 2019).
A. Notice of claim
Awards of preverdict interest “are designed to serve two functions: (1) to compensate prevailing parties for the true cost of money damages incurred, and (2) to promote settlements when liability and damage amounts are fairly certain and deter attempts to benefit unfairly from delays inherent in litigation.” Solid Gold Realty, Inc. v. Mondry, 399 N.W.2d 681, 683 (Minn. App. 1987). The preverdict-interest statute provides: “Except as otherwise . . . allowed by law, preverdict . . . interest on pecuniary damages shall be computed . . . from the time of the commencement of the action or a demand for arbitration, or the time of a written notice of claim, whichever occurs first.”
Appellant argues that the district court erred by concluding that the January 26 letter constituted a “notice of claim” under
To ascertain the plain meaning of a word, appellate courts “often consult dictionary definitions.” Wayzata Nissan, LLC v. Nissan N. Am., Inc., 875 N.W.2d 279, 286 (Minn. 2016). The word “notice” is defined in Black‘s Law Dictionary as: Legal notification required by law or agreement, or imparted by operation of law as a result of some fact . . . . A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording.
Black‘s Law Dictionary 1227 (10th ed. 2014). And Webster‘s defines “notice” as “information, announcement or warning.” Webster‘s New Dictionary of the American Language 973 (2nd ed. 1972).
A statement that something yet to be proved is true . . . . The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional . . . . A demand for money, property, or a legal remedy to which one asserts a right . . . .
Black‘s Law Dictionary 301 (10th ed. 2014).
Here, the January 26 letter is a written statement addressed to Anderson‘s insurance claims office, printed on the letterhead of a law firm identifying all of the attorneys of the law firm, the firm‘s address, and main telephone number, and signed by an attorney of the law firm right above his direct telephone number. The January 26 letter also contains the date of the accident and what appears to be Anderson‘s insurance policy number. The body of the letter in its entirety provides:
We have been retained to represent [respondent] in connection with injuries sustained in the above accident.
Please confirm the existence and amount of coverage and provide us with your claim number.
Our office would also appreciate color copies of any property damage photographs, accident scene photographs, repair estimates and any statements concerning this loss.
Your courtesies are appreciated.
Appellant argues that the district court erred by concluding that the January 26 letter constituted a “notice of claim” under
Appellant‘s argument that the January 26 letter does not constitute a notice of claim under
Despite the dearth of published Minnesota caselaw interpreting the phrase “notice of claim” contained in
The Bunn-O Matic decision was recently relied upon by a federal district court in Minnesota determining what constituted a “written notice of claim” for purposes of the preverdict-interest statute. See Creekview of Hugo, 386 F. Supp. 3d at 1068-69. In that case, the insurance manager for a townhome complex emailed its insurer of its “need to open a claim for this community.” Id. at 1068. The email contained the date of loss, stated that the cause of damage was “hail,” and requested that the “assigned adjuster contact me and let me know the claim number once you have record of it.” Id. The Creekview of Hugo court concluded that the email “constituted a demand for payment that is sufficiently specific under Bunn-O Matic” because the insurer “could have determined its potential liability” from the information provided. Id. at 1069. In reaching its decision, the Creekview of Hugo court reasoned that the “only reason an insured would open a claim with its insurance carrier is that it believed its loss was covered under the applicable policy and that it claimed some amount of payment from the insurer for the damage.” Id. at 1068.
The reasoning in Bunn-O Matic and Creekview of Hugo is consistent with published Minnesota caselaw addressing the date on which preverdict interest commences under
In determining whether interest should be allowed the question was not whether the parties agreed on the amount of damages but whether [the defendant] could have determined the amount of its potential liability from a generally recognized objective standard of measurement. Mere difference of opinion as to the exact amount of damages was not sufficient to excuse [the defendant] from compensating [the plaintiff] for loss of the use of its money . . . .”
ICC Leasing Corp. v. Midwestern Mach. Co., 257 N.W.2d 551, 556 (Minn. 1977) (citation omitted). And in Mondry, this court cited ICC Leasing in concluding that the plaintiff was entitled to preverdict interest from the date when it first demanded payment even though the damages were not readily ascertainable since the value of the property at issue could have been based on alternative methods of calculation. Mondry, 399 N.W.2d at 684. As such, we conclude that the reasoning set forth in Bunn-O Matic and Creekview of Hugo is persuasive. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (stating that nonprecedential decision may have persuasive value); see also TCI Bus. Capital, Inc. v. Five Star Am. Die Casting, LLC, 890 N.W.2d 423, 431 (Minn. App. 2017) (acknowledging that a federal court‘s interpretation of Minnesota law may have persuasive value).
Based on Bunn-O Matic and Creekview of Hugo, a written notice of claim need not identify a specific amount of damages to trigger preverdict interest under
Nonetheless, persuasive authority states that to constitute a “notice of claim,” the purported written notice must be sufficient to allow the defendant to determine “‘its potential liability from a generally recognized objective standard of measurement.‘” See Bunn-O Matic, 1996 WL 689768, at *10 (quoting Mondry, 399 N.W.2d at 684). Here, similar to the notice given in Bunn-O Matic and Creekview of Hugo, the January 26 letter reasonably notified Anderson‘s insurer that respondent, who was represented by a law firm, was making a claim for damages against Anderson‘s estate for injuries sustained in the accident.
As evidence of respondent‘s intent to make a claim against Anderson‘s estate, and ultimately against Anderson‘s automobile liability insurer, the January 26 letter identified respondent‘s attorney, advised the insurer that he was representing respondent, and provided his contact information. The letter then asked for confirmation of the existence of the policy, the policy limits, and the claim number for the accident, as well as copies of any photographs, repair estimates, and statements regarding the insurer‘s investigation of the accident. In asking for the policy limits of the insurer, respondent‘s attorney was implicitly communicating a concern that his client had a claim for damages that might equal or exceed the insurer‘s policy limits. In requesting copies of documents from the insurer‘s investigation of the accident, respondent‘s attorney reasonably anticipated that the insurer was well aware of the seriousness of an automobile accident causing the death of its insured and injuring respondent. We conclude that, under these circumstances, the letter sufficiently notified the insurer that respondent was making a claim for damages as a result of the accident and that the insurer, based upon the information in the letter and in its claim file, was sufficiently notified of its potential liability to respondent. See Creekview of Hugo, 386 F. Supp. 3d at 1068-69; see also Bobo v. Varughese, 507 S.W.3d 817, 819-20, 825 (Tex. App. 2016) (concluding that a letter constituted a written notice of claim for purposes of Texas’ prejudgment-interest statute where the letter (1) was sent by the plaintiff‘s attorney to the insurance company‘s claims department, (2) referenced the insured and the claim number, (3) stated that the plaintiff suffered personal injuries and other damages, and (4) indicated that the plaintiff was in the process of receiving medical treatment).
Appellant argues that an amendment to
In sum, a “notice of claim” under
B. Applicable interest rate
Appellant argues that the district court erred by awarding preverdict interest at a rate of ten percent per annum on respondent‘s medical-expense damages under
The preverdict-interest statute provides: “Except as otherwise provided by contract or allowed by law, preverdict, preaward, or prereport interest on pecuniary damages shall be computed . . . from the time of the commencement of the action or a demand for arbitration, or the time of a written notice of claim, whichever occurs first.”
In Hogenson v. Hogenson, this court stated that
Appellant argues that because the amount of respondent‘s past medical expenses was known at the time of respondent‘s March 8, 2018 settlement demand letter, the damages were liquidated and, therefore, readily ascertainable. We disagree. Damages are not ascertainable if they depend on “contingencies or jury discretion.” Id. Examples of unascertainable damages include the valuation of a partnership
Here, the district court did not make specific findings related to whether respondent‘s medical-expense damages were readily ascertainable. But by awarding interest at a rate of ten percent per annum, the district court implicitly found that respondent‘s medical-expense damages were not readily ascertainable. See Umphlett v. Comm‘r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995) (holding that findings may be inferred from the district court‘s final resolution of a matter), review denied (Minn. Aug. 30, 1995). Our review of the record supports this finding. The record indicates that in addition to disputing the percentage of fault to be allocated between respondent and Anderson, appellant disputed the amount of damages that respondent should be awarded for his medical expenses. Specifically, appellant‘s answer “denies that [respondent‘s] alleged injuries satisfy suit thresholds, [and] require future medical or hospital expenses.” And the jury instructions indicate that the jury was to decide the amount of damages, if any, respondent should be awarded for his medical expenses. Because the amount of respondent‘s medical-expense damages were dependent on jury discretion, they were not readily ascertainable. See Hogenson, 852 N.W.2d at 274 (stating that damages are not ascertainable if they depend on “contingencies or jury discretion“); see also Trapp, 587 N.W.2d at 64 (concluding that the value of collateral was not “readily ascertainable” because the method of valuing was “sharply disputed throughout the litigation“). Therefore, the district court did not err by awarding preverdict interest at a rate of ten percent per annum under
C. Preverdict interest on additur damages
Appellant argues that the district court erred by awarding preverdict interest on additur damages. Additur is “the practice of the [district] court to condition a denial of a new trial on the defendant‘s consent to an increase in the verdict.” Seydel v. Reuber, 94 N.W.2d 265, 268 (Minn. 1959). The district court may grant additur only if grounds for a new trial on damages exist. Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988).
The preverdict interest statute provides that preverdict interest shall not be awarded to “that portion of any verdict, award, or report which is found upon interest, or costs, disbursements, attorney fees, or other similar items added by the court or arbitrator.”
The district court determined that “additur, as an amount representing past damages, is not similar to the statutorily designated items. Whether an award for damages is determined by a jury, or later added by the Court, it is not an item which is barred from receiving statutory preverdict interest.”
Appellant argues that additur is a “similar item” to those referenced in
II. Did the district court abuse its discretion in awarding costs and disbursements?
Appellant challenges the district court‘s award of costs and disbursements with respect to (A) expert-witness fees, (B) expert-witness preparation, (C) non-testifying police officers’ fees, (D) non-testifying police officers’ depositions, (E) photocopy expenses, and (F) double costs. Appellant argues that because the district court made one conclusory finding that “every cent sought” was reasonable, the award of costs and disbursements was an abuse of discretion.
Appellate courts “generally review a district court‘s award of costs and disbursements for an abuse of discretion.” Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014). A district court abuses its discretion when its decision is “against logic and facts on the record.” Posey v. Fossen, 707 N.W.2d 712, 714 (Minn. App. 2006). The party challenging the district court‘s exercise of discretion bears the burden of proving that the district court abused its discretion. Id.
A. Expert-witness fees
Allowance of expert-witness fees to the prevailing party in an award of costs and disbursements has long been a recognized practice in Minnesota. See Kundiger v. Metro Life Ins. Co., 15 N.W.2d 487, 495 (Minn. 1944) (noting that allowance of expert-witness fees to prevailing party “was made by order of the [district] court . . . according to recognized practice“). But expert-witness fees must be reasonable.
Appellant argues that it was “unfair” for the district court to award the fees of the rebuttal accident-reconstruction expert to respondent because the expert‘s testimony was cumulative and his fee was “three times higher than the case-in-chief expert.” But the district court allowed the rebuttal accident-reconstruction expert to testify, and appellant does not challenge the admission of his testimony. Moreover, as respondent points out, the rebuttal accident-reconstruction expert was more experienced than the case-in-chief expert, and appellant did not argue in the district court that the accident-reconstruction expert‘s fees were unreasonable. Therefore, appellant is unable to show that the district court abused its discretion in awarding the expert-witness fees.
B. Expert-witness preparation
Next, appellant argues that the district court abused its discretion by awarding reimbursement of costs associated with the rebuttal accident-reconstruction expert‘s preparation time to respondent. To support its position, appellant cites
It is well established in Minnesota that it is within the district court‘s discretion to award expert-witness fees to the prevailing party for pretrial preparation time. Buscher v. Montag Dev., Inc., 770 N.W.2d 199, 209 (Minn. App. 2009) (“The district court is permitted to tax costs for pretrial preparation time.“), review denied (Minn. Oct. 28, 2009). And in Lake Superior Ctr. Auth. v. Hammel, Green, & Abrahamson, Inc., this court rejected an argument identical to that made by appellant in this case. 715 N.W.2d 458, 483 (Minn. App. 2006), review denied (Minn. Aug. 23, 2006). The Lake Superior court stated that rule 1272 “specifies only the daily expert fees that the court administrator may tax,” and that a “court may, in its discretion, allow ‘pretrial preparation time in awarding just and reasonable compensation’ under
Here, as in Hammel, expert witnesses were necessary because of the complexity of the accident reconstruction, and the district court was provided with adequate information to determine the value of the expert fees. We discern no abuse of discretion in the district court‘s award of costs associated with the rebuttal accident-reconstruction expert‘s preparation time.
C. Non-testifying police officers’ fees
Appellant challenges the award to respondent of “expert” fees of approximately $300 per witness for two police officers, arguing that because the police officers were fact witnesses who did not testify at trial, they were subject to the statutory $20 cap set forth in
The district court here considered the fees associated with the two police officers’ deposition appearances and found that the fee amount of approximately $300 per witness was appropriate. In light of the financial burden placed on local law-enforcement agencies associated with police officers appearing for depositions, we discern no abuse of discretion in awarding respondent the non-testifying police officers’ fees of approximately $300 per officer.
Appellant further argues that the district court abused its discretion by including in the taxable costs the cost of the depositions of four police officers who did not testify at trial. But the award of deposition costs to the prevailing party is within the discretion of the district court. Larson v. Hill‘s Heating & Refrigeration of Bemidji, Inc., 400 N.W.2d 777, 783 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987). And “[t]he fact that a deposition was not used at trial does not bar deposition costs.” Johnson v. S. Minn. Mach. Sales, Inc., 460 N.W.2d 68, 73 (Minn. App. 1990). The district court here did not find that the deposition costs were unreasonable. Therefore, the district court did not abuse its discretion in awarding costs for the non-testifying police officers’ depositions.
E. Photocopy expenses
Appellant challenges the district court‘s award of photocopy expenses, arguing that a “[r]emand should occur for an actual cost analysis to occur before the [district] court to see if every cost is reasonable, non-cumulative, not duplicative, and fair.” But appellant concedes that a district court “may award reasonable and non-cumulative photocopy and exhibit costs.” And appellant offered no support for its position that the photocopy expenses were cumulative. Instead, appellant simply argued that the award was unfair. Thus, appellant has not met its burden to show that the district court abused its discretion by awarding the photocopy expenses.
F. Double costs
Finally, appellant contends that if it receives any relief from its claims, “the issue of double costs can be evaluated by counsel and presumably resolved, or relief could be sought before the district court on remand.” Because appellant has not shown that the district court abused its discretion in awarding costs and disbursements, a remand is not necessary.
DECISION
The district court did not err in determining the amount of preverdict interest and did not abuse its discretion in awarding costs and disbursements. We, therefore, affirm the judgment of the district court.
Affirmed.