Barta v. Hinds

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 16] I concur in the result reached by the majority, although I agree with much of what Justice Neumann writes in his dissent. I part company with the dissent on the fact the amount awarded for pain and suffering is the exact amount of medical expenses (to the penny)! I cannot accept that it is only an “interesting coincidence.” The jury either entered the figure on the wrong line or, as the trial court seems to imply in its “Order Denying Motion For New Trial,” the jury contrived to put the amount on the line for pain and suffering whereby the plaintiff would receive 75% of the amount rather than on the line for economic loss whereby the plaintiff would receive nothing:

“The more troublesome question remaining is did the jury err in setting forth damages in the amount of $5,604.70 for pain and suffering and giving nothing for medical expenses and permanent disability? It is likely that the jury was simply mistaken and put the amount of the Plaintiffs medical expenses on the wrong line. It is noted that $5,604.70 is the amount presented in evidence as medical expenses for the Plaintiff. This amount is not in dispute. Prior to the trial and earlier it had been determined that the Plaintiff would not be able to recover these damages since they were paid under the provisions of the North Dakota Auto Reparations Act. That Act provides that a secure person such as the Defendant is exempt from economic loss to the extent of all *558basic no-fault benefits paid. The aforementioned $5,604.70 is an economic loss. Thus, even if the jury had entered this amount on a line for medical expenses, the Defendant would receive nothing. By placing the amount on the line for pain and suffering the Defendant will receive 75% of the aforementioned amount. Accordingly, it is my determination that the Plaintiff has not been prejudiced by the jury award and as such a new trial is not warranted.”

[¶ 17] Either explanation does not justify the result and requires a new trial.

[¶ 18] Gerald W. Vande Walle, C.J.