Rod REISENAUER, Plaintiff and Appellant, v. James E. SCHAEFER and Pamela Susag, Defendants and Appellees.
Civ. No. 930237.
Supreme Court of North Dakota.
April 20, 1994.
515 N.W.2d 152
“1. The defendant‘s criminal conduct neither caused nor threatened serious harm to another person or his property.
“2. The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property.
“3. The defendant acted under strong provocation.
“4. There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant‘s conduct.
“5. The victim of the defendant‘s conduct induced or facilitated its commission.
“6. The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained.
“7. The defendant has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense.
“8. The defendant‘s conduct was the result of circumstances unlikely to recur.
“9. The character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime.
“10. The defendant is particularly likely to respond affirmatively to probationary treatment.
“11. The imprisonment of the defendant would entail undue hardship to himself or his dependents.
“12. The defendant is elderly or in poor health.
“13. The defendant did not abuse a public position of responsibility or trust.
“14. The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise cooperated.
“Nothing herein shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing.”
Because Hoffarth‘s “sentencing statistics” do not consider the legitimate factors affecting the length of sentences, they are invalid.
The judgment of the district court denying Hoffarth‘s application for post-conviction relief is affirmed.
VANDE WALLE, C.J., and MESCHKE, LEVINE and NEUMANN, JJ., concur.
Michael J. Maus, Howe, Hardy, Galloway & Maus, PC, Dickinson, for plaintiff and appellant.
Robert J. Snyder, Snyder Coles Lawyers, Bismarck, for defendant and appellee James E. Schaefer.
Jerry W. Evenson, Zuger, Kirmis & Smith, Bismarck, for defendant and appellee Pamela Susag.
Rod Reisenauer appeals from a judgment awarding him only damages for noneconomic loss. We affirm in part, reverse in part and remand.
On June 24, 1990, Reisenauer and James Schaefer were involved in an automobile accident. Schaefer was driving a vehicle owned by Pamela Susag. Reisenauer sued Schaefer for negligent operation of the vehicle and Susag for negligent entrustment of her vehicle to Schaefer. The jury found Schaefer negligent, and Susag not negligent. It also decided that Reisenauer suffered a serious injury and that his damages were wholly attributable to Schaefer‘s negligence. The jury awarded Reisenauer $1,700 for noneconomic loss1 and $28,900 for economic loss,2 $900 of which was for past medical expenses and $28,000 of which was for past loss of productive time.
Following the jury‘s special verdict, Schaefer moved to exclude the amount awarded for economic loss from the judgment to be entered. Schaefer argued that because Reisenauer had admitted in his answers to Schaefer‘s interrogatories that Schaefer was a secured person and that Reisenauer was entitled to no-fault benefits and had not exhausted his basic no-fault benefits, Schaefer was exempt from liability to pay damages for Reisenauer‘s economic loss. Reisenauer replied that Schaefer did not raise the issue properly and failed to present any proof as to what amount of basic no-fault benefits Reisenauer had received. The trial court granted Schaefer‘s motion and entered judgment accordingly. Reisenauer appealed.
On appeal, Reisenauer raises two issues: whether the trial court erred in granting Schaefer‘s motion to exclude economic loss and whether Reisenauer is entitled to a new trial.
I.
Reisenauer argues that the trial court erred in granting Schaefer‘s motion to exclude economic loss because the secured-person exemption,
Section 26.1-41-08 provides to a secured person an exemption from liability for damages under specified circumstances:
“1. In any action against a secured person to recover damages because of accidental bodily injury arising out of the ownership or operation of a secured motor vehicle in this state, the secured person is exempt from liability to pay damages for:
a. Noneconomic loss unless the injury is a serious injury.
b. Economic loss to the extent of all basic no-fault benefits paid or to become payable for such injury under this chapter after subtracting the same elements of loss recoverable under any workers’ compensation law.
“2. The exemption under subsection 1 does not apply unless the person who has sustained accidental bodily injury is a person who may qualify for basic no-fault benefits pursuant to section 26.1-41-06 and who is not excluded under section 26.1-41-07.”
Under subsection (1)(a) of the statute, a secured person3 is exempt from liability for noneconomic loss unless the victim has sustained a serious injury. We have construed this subsection as a “threshold requirement for seeking noneconomic damages” and have placed the burden on the plaintiff to allege and establish that she has met the threshold requirement. Erdmann v. Thomas, 446 N.W.2d 245, 246 (N.D. 1989); see also Calavera v. Vix, 356 N.W.2d 901, 902 (N.D. 1984). In Erdmann, in determining whether the trial court properly admitted the plaintiff‘s medical bills into evidence, we explained that “[u]nder
Under subsection (1)(b) of
Our construction of section 26.1-41-08(1) as a threshold requirement is in keeping with the purpose of
Additionally, the burden of proving that economic loss exceeds basic no-fault benefits paid or payable to the plaintiff best is borne by the plaintiff. The plaintiff knows what his basic no-fault benefits are, how much he has received, and how much he will get. He also knows what his unreimbursed economic damages are. See, e.g., In re Mt. Pleasant Bank & Trust Co., 455 N.W.2d 680, 685 (Iowa 1990) [“[T]he burden of proof ordinarily rests on the party who possesses the facts on the issue in dispute.“]. As both a matter of statutory construction and fairness, then, section 26.1-41-08(1)(b) is a threshold requirement for which the plaintiff bears the burden of proof.
Unlike the “serious injury” threshold of section 26.1-41-08(1)(a), however, the issue of whether the plaintiff‘s economic loss exceeds the no-fault benefits paid or payable to her is not one for the jury. Depending upon the particular circumstances, the trial court may decide the issue pretrial, but in any event should decide it and exclude the amount of paid or payable basic no-fault benefits before entering judgment, in order to prevent double recovery. See Moser v. Wilhelm, supra at 845-47 [holding that plaintiff properly was prevented from introducing evidence of economic loss where plaintiff admitted she had not exhausted her basic no-fault benefits and only issue was whether defendant was a secured person].
Reisenauer did not establish the amount of economic loss that exceeded the basic no-fault benefits paid or payable to him. Instead, in response to Schaefer‘s motion to reduce the jury‘s determination of Reisenauer‘s economic loss by the amount of basic no-fault benefits paid or payable to Reisenauer, Reisenauer simply responded that it would be “ludicrous” to assume that he had received $28,900 in basic no-fault benefits. That was the extent of the guidance Reisenauer offered to the trial court. It was Reisenauer, not Schaefer, who bore the burden of showing that his economic loss exceeded the basic no-fault benefits paid or payable to him for that loss. Faced with no information about the amount of Reisenauer‘s basic no-fault benefits or their purpose, and an award that was, on its face, less than the maximum allowable amount of basic no-fault benefits, see
II.
Reisenauer also claims he is entitled to a new trial. He contends that the jury‘s special verdict was inconsistent because the jury found that Reisenauer sustained a serious injury but did not award him damages for future pain, discomfort, and mental anguish or for permanent disability, and that the jury‘s award of damages was “so inadequate as to be without support in the evidence.”6
Here, the jury‘s finding that Reisenauer sustained a serious injury is not inconsistent with its failure to award damages for future pain, discomfort, and mental anguish or for permanent disability. First, nothing in the jury instructions required the jury to award damages for those items upon a finding of serious injury. See Grenz v. Kelsch, 436 N.W.2d 552, 554 (N.D. 1989). Second, the jury did award Reisenauer damages for past pain, discomfort, and mental anguish. We have noted that “[b]y nature, damages for future pain, discomfort, and mental anguish are more speculative than damages for past pain, discomfort, and mental anguish,” and thus an award for past but not future pain, discomfort, and mental anguish may not be inconsistent. Slaubaugh, supra at 577 n. 1. Finally, one of the definitions of a serious injury is disability beyond sixty days.
Nor was the jury‘s award of damages so inadequate that it was without support in the evidence. The determination of damages for pain, discomfort, and mental anguish largely is dependent upon the jury‘s common knowledge, good sense, and practical judgment and mainly rests within its sound discretion. Slaubaugh, supra at 577. Reisenauer testified that he has slept poorly since the accident due to back pain. We do not think the jury‘s award of noneconomic damages is outside the limits of the range supported by the evidence. The jury‘s award of medical expenses correlates with those claimed by Reisenauer. The jury‘s award for past loss of productive time likewise is in line with the evidence presented by Reisenauer about the number of days of work he missed due to the accident.
We affirm that portion of the judgment awarding noneconomic damages, but reverse the exclusion of economic loss and remand for reconsideration of Reisenauer‘s recoverable economic loss, if any.
VANDE WALLE, C.J., and NEUMANN, J., concur.
MESCHKE, Justice, concurring.
I concur in the result. I am less certain than the majority that Schaefer could procedurally raise a defense after the jury verdict. The new question of the extent of Reisenauer‘s “secured person” receipt of basic no-fault benefits paid or to become payable was not raised in the pleadings. Since no question of jurisdiction or failure to state a claim is presented, this ruling does little or nothing to further the underlying policy of no-fault statutes that are designed to remove most motor vehicle-accident claims from the court-administered tort system.
Schaefer did not plead a no-fault threshold question, nor did he object to Reisenauer‘s proof of economic damages, nor did he ask the court to consider a no-fault limitation until after the jury verdict. “Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, must be asserted in the responsive pleading thereto if one is required,” except for certain important claims that can be presented by motion “made before pleading if a further pleading is permitted.”
Still, the remand for correct determination of the factual question does substantial justice. For that reason, I concur in the result.
SANDSTROM, J., concurs.