Blumenshine v. Baptiste ( 1994 )

OPINION

RABINOWITZ, Justice.

Mark Blumenshine asserts that the superi- or court erred in failing to reduce the jury’s award of past medical expenses to Wilfred J. Baptiste, Sr. based upon Baptiste’s comparative fault. The superior court ruled that Blumenshine waived the point because the jury’s verdict was inconsistent and Blu-menshine failed to object to the inconsistency before discharge of the jury. Baptiste cross-appeals, claiming the superior court erred in setting aside the jury’s award of future medical expenses and in determining that Blu-menshine was the prevailing party in awarding attorney’s fees.

We affirm the superior court’s set aside of the award of future medical expenses and its refusal to reduce the jury’s award for past medical expenses. We reverse the superior court’s prevailing party determination.

I. FACTUAL AND PROCEDURAL BACKGROUND

Baptiste and Blumenshine were involved in an automobile accident in which Baptiste was injured. Blumenshine admitted that he was negligent and that his negligence proximately caused injury to Baptiste. However, Blu-menshine contended that Baptiste’s own negligence was partly or fully responsible for the latter’s injuries.

At trial Baptiste sought compensatory damages for past medical expenses in the amount of $19,371, future medical expenses in the same amount, past and future physical impairment, past and future pain and suffering; he also sought punitive damages. Baptiste’s wife sought damages for loss of consortium.

In a special verdict, the jury awarded Baptiste $19,371.36 for past medical expenses, $2,500 for future medical expenses, $8,000 for past and future physical impairment and $8,001 for past and future pain and suffering. The jury awarded no loss of consortium or punitive damages. The jury also found that Baptiste was 25% comparatively negligent, and that this negligence was a legal cause of his injuries. An asterisk and handwritten note on the jury’s special verdict form indicated that the damage amounts specified in the special verdict categories “should be net amounts[.] Plaintiff to receive all amounts.”

Upon return of the special verdict, the superior court held a bench conference with the attorneys. The court called the attorneys’ attention to the jury’s handwritten note, but did not at that time inform them of the amounts awarded. With the attorneys’ consent, the superior court asked the jury whether it intended “that these numbers have included your calculation as to comparative negligence, and that you expect the plaintiff to receive all those numbers.” The foreperson responded “Yes.” The superior court then read the special verdict into the record. After both attorneys declined the opportunity to poll the jury, the superior court discharged the jury. Neither counsel objected to its discharge.

Blumenshine later moved for judgment notwithstanding the verdict (JNOV) on the basis that (1) the award of past medical expenses did not reflect Baptiste’s 25% comparative negligence, and (2) the evidence presented was insufficient to support the award of future medical expenses. Blumenshine also moved for a determination that he was the prevailing party for purposes of an award of attorney’s fees and costs.

The superior court denied Blumenshine a 25% reduction in the jury’s award of past medical expenses. The court granted Blu-menshine’s motion with respect to future medical expenses and decided Blumenshine was the prevailing party. This appeal and cross-appeal followed.¹

II. DISCUSSION

A. Waiver of Inconsistency in Jury’s Verdict

Blumenshine argues that the superior court erred in declining to reduce the jury’s award of past medical expenses to reflect Baptiste’s comparative negligence. In response, Baptiste argues that the jury’s ver-diet as to past medical expenses was inconsistent, and that Blumenshine waived any objection to the award by failing to challenge the consistency of the verdict prior to the jury’s discharge.

Baptiste adduced evidence showing he had sustained $19,371 in damages for past medical expenses. The jury found that Baptiste had suffered $19,371 in past medical expenses and that 25% of his damages were sustained as a consequence of his comparative fault.² Without the jury’s note to its special verdict, Baptiste’s award would have been reduced by 25% to reflect his comparative negligence. However, the jury’s note and the foreperson’s response to the superior court’s question indicated that the jury had already reduced the amount awarded for past medical expenses in consideration of Baptiste’s comparative negligence. Given the evidence produced as to past medical expenses, the amount of damages for past medical expenses found by the jury, and the jury’s note to its special verdict, it is clear that the verdict as to this damage issue is inconsistent.

Blumenshine urges us to ignore the handwritten note as “surplusage.” In support of this contention, Blumenshine cites instances in which courts have disregarded extraneous notes from the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind.App.1981) (disregarding a note that stated that portion of award was for future medical expenses); Gilmore v. Control Data Corp., 442 N.W.2d 835, 839 (Minn.App.1989) (disregarding a note that stated that attorney’s fees and court costs were to be awarded); Gustavson v. O’Brien, 87 Wis.2d 193, 274 N.W.2d 627, 634 (1979) (disregarding a note regarding contributory negligence where it was not an issue in the case). The notes in Barrow and Gilmore did not create any inconsistencies. Rather, they constituted additional “findings” the jury was not asked to make. Here the jury’s note explained its award for past medical expenses and therefore, it cannot be struck as mere surplusage.

“To give effect to the jury trial right in civil cases” this court will examine the pleadings, instructions, arguments and evidence to obtain a view of the case that harmonizes what seems at first to be an inconsistent verdict. Schmit v. Stewart, 601 P.2d 266 (Alaska 1979). “We will look for consistency, but will not create it where there is none.” City of Homer v. Land’s End Marine, 459 P.2d 475, 478 (Alaska 1969). Blumenshine has failed to present any plausible theory of consistency short of ignoring the note and the foreperson’s response to the superior court’s inquiry.

Based on the inconsistency of the jury’s verdict, Baptiste argues that Blu-menshine waived any objection to the verdict.³ We agree. “Challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury.” Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 446 n. 7 (Alaska 1989); City of Homer, 459 P.2d at 480 (inconsistency between total award of $84,000 on a twenty-year contract and finding that plaintiff had suffered $500 damage in three years and eight months was waived). We have noted that the waiver rule “promotes the fair and expeditious correction of error.” Id. (quoting Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968)).

The superior court called the note to the attorneys’ attention and with the attorneys’ approval questioned the jury about its intent. After reading the verdict into the record and offering to poll the jury, the superior court discharged the jury. Despite this notice, counsel allowed the jury to be discharged and the special verdicts filed. Since Blu-menshine failed to challenge the consistency of the special verdict pertaining to damages for past medical expenses before the jury was discharged, we hold that he waived this argument.

B. Award, of Future Medical Expenses

In response to Blumenshine’s motion for JNOV, the superior court set aside the jury’s award of $2,500 for future medical expenses. Baptiste presented medical testimony that his pain and disability were permanent and detailed evidence of his past medical expenses. He asserts that his future medical expenses can be inferred from the permanency of his injuries and the cost of his past medical treatment for pain and disability caused by the accident in question.

To recover for future medical expenses one must prove to a reasonable probability that they will occur. Maddocks v. Bennett, 456 P.2d 453, 458 (Alaska 1969). “[T]he jury cannot be allowed to speculate or guess in making allowance for future medical expenses; there must be some data furnished the jury upon which it might reasonably estimate the amount to be allowed for this item.” Henderson v. Breesman, 269 P.2d 1059, 1061-62 (Ariz.1954), quoted in City of Fairbanks v. Nesbett, 432 P.2d 607, 618 n. 31 (Alaska 1967).

Baptiste was required to present both evidence that medical treatment would be necessary, and evidence of the treatment’s anticipated cost to recover for future medical expenses. The Nevada Pain and Rehabilitation Center (Center), where Baptiste participated in a twenty-day chronic pain management program, concluded that Baptiste did not need any further medical evaluations or medical treatment. The Center recommended that Baptiste exercise, return to work and lose weight. Although cortisone treatment was suggested by a physician, Baptiste did not indicate that he would undertake the treatment or what this treatment would cost. Accordingly, Baptiste did not prove to a reasonable certainty that he would incur future medical expense. We therefore affirm the superior court’s grant of JNOV as to the jury’s award of damages for future medical expenses.

C. Prevailing Party Determination

“[A]n award of attorney’s fees to the prevailing party is committed to the broad discretion of the trial court and will be set aside only if manifestly unreasonable.” Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752 (Alaska 1989). We will reverse a superior court’s prevailing party determination “only upon finding an abuse of discretion.” Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989).

Upon reconsideration, the superior court confirmed its decision that Blumenshine was the prevailing party under Alaska Civil Rule 82 for several reasons. First, Baptiste’s recovery was slight compared to the $700,000 in damages requested. Second, Blumenshine had conceded that he was negligent, that his negligence was a proximate cause of Baptiste’s injuries, and that Baptiste should recover his medical expenses. Baptiste lost on the issues of loss of consortium and punitive damages. Baptiste also unsuccessfully contended that he was not comparatively negligent.

Baptiste claims that he is the prevailing party because the jury awarded him substantial damages for past and future medical expenses, for physical impairment, and for pain and suffering. We have consistently held that the prevailing party is the one who prevailed on the main issues. Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1327 (Alaska 1993); Buoy, 771 P.2d at 448; Hutchins v. Schwartz, 724 P.2d 1194, 1204 (Alaska 1986); Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976); Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973); Owen Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 314 (Alaska 1972); Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964). A plaintiff may prevail even if he or she failed to recover all of the relief prayed for. Hillman, 855 P.2d at 1328; Alaska Placer, 553 P.2d at 63 (plaintiffs seeking $73,298 and awarded $34,026 after offset were prevailing party); Buza, 395 P.2d at 514 (plaintiff seeking return of logs and damages and awarded possession of logs but no damages determined to be the prevailing party).

A recovery does not guarantee prevailing party status. Owen Jones, 497 P.2d at 314-15; see also Buoy, 771 P.2d at 448 (plaintiffs award offset entirely by previous settlements); Hutchins, 724 P.2d at 1204 (recovery of $1,937 less 40% on $275,000 claim considered de minimis, plaintiff not prevailing party); Hayer v. National Bank of Alaska, 619 P.2d 474, 477 (Alaska 1980) (remanding where trial court relied solely on the fact that plaintiff received an affirmative recovery). “[A] litigant who successfully defeats a claim of great potential liability may be the prevailing party even if the other side receives an affirmative recovery.” Buoy, 771 P.2d at 448.

However, a plaintiff should not be penalized for a small recovery. Otherwise, a plaintiff with a modest recovery who must pay substantial attorney’s fees could end up with a net loss. “The purpose of Civil Rule 82 is to partially compensate a prevailing party for the costs and fees incurred where such compensation is justified and not to penalize a party for litigating a good faith claim.” Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 588 (Alaska 1973).

Although Baptiste did not prevail on every issue in this case, he succeeded in obtaining the full damages requested for past medical expenses, and $16,001 for past and future physical impairment and pain and suffering. Since he recovered a significant damage award on the main issues, Baptiste was the prevailing party for the purpose of awarding attorney’s fees. We therefore conclude that the superior court abused its discretion in determining that Blumenshine was the prevailing party.

III. CONCLUSION

The superior court’s judgment is AFFIRMED as to past and future medical expenses and is REVERSED as to its prevailing party determination. We REMAND for determination of an award of attorney’s fees to Baptiste.

MATTHEWS, J., dissents in part.

COMPTON, J., dissents in part.

1 . The superior court granted Baptiste's motion to reconsider its prevailing party determination. After further briefing, the superior court again found Blumenshine to be the prevailing party.

2 . Comparative fault diminishes the amount awarded as compensatory damages. See AS 09.-17.060. "The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.” AS 09.17.080(d).

3 . The parties agree that whether Blumenshine waived objection to the- jury’s award of past medical expenses on the grounds of inconsistency is a question of law. In reviewing a superior court’s ruling on a motion for JNOV, we will not weigh conflicting evidence or judge the credibility of witnesses. Rather, we will determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment. Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 578 (Alaska 1989).