Leliefeld v. Panorama Contractors, Inc.

ON REHEARING

BISTLINE, J.

The major thrust of the defendants at rehearing was that the court inappropriately applied the rule of Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980) — wherein it was held that there was a presumption that the Idaho legislature, in adopting Wisconsin’s comparative negligence statute, *909also adopted that state’s prior existing judicial construction of the statute as well. The contention made was that Nelson v. Travelers Insurance Co., 102 Wis.2d 157, 306 N.W.2d 71 (1981) involved only Wisconsin’s statute providing interest on a verdict, and had no concern whatever with concepts of comparative negligence. That statute provided:

(4) Interest on verdict. When the judgment is for the recovery of money, interest at the rate of 7% per annum from the time of verdict, decision or report until judgment is entered shall be computed by the clerk and added to the costs.
Wisc.Stat.Ann. § 814.04(4) (1977).

That this provision was mentioned in Nelson fails to alter the fact that Nelson, like the instant case, was a comparative negligence case that did involve post-judgment as well as post-verdict interest. The defendant apparently forgets that at the first hearing its primary assertion was that the damages for which the two defendants then involved were liable could not be ascertained until causative fault of the two defendants and the plaintiff had been apportioned under the comparative negligence statute. By virtue of Odenwalt, we presumed that the Idaho legislature, consistent with pre-1971 Wisconsin case law as summarized in Nelson, supra, intended that interest would run on damages which were established (with this Court’s stamp of finality) by a jury verdict upon which a judgment was immediately entered, notwithstanding a reversal as to the State’s liability with direction on remand for retrial of only issues of comparative fault of all parties.

The post-verdict provision of Wisconsin Law, § 814.04(4) (1977), is primarily of academic interest only. Under Idaho practice there is, and has been, no need for any comparable statute or rule. When verdict has been rendered and accepted, judgment is entered thereon and interest begins accruing thereon immediately. This is not so in Wisconsin, as is readily apparent from the Nelson excerpts set out at length in our January opinion. From 111 Idaho page 901, 728 P.2d page 1310 of that opinion, quoting directly from Nelson:

The action was tried to a jury which, on December 23, 1974, returned a verdict in favor of the plaintiffs, finding Mrs. Nelson 25 percent negligent and the defendants 75 percent negligent, and determining the damages to be $21,500 for Mrs. Nelson and $4,150 for her husband. After reduction of the damage amount to reflect the jury’s allocation of causal negligence and then addition of costs and disbursements, judgment was entered on the verdict on August 8, 1975. (Footnote omitted; emphasis added.)

Again from page 901, 728 P.2d page 1310 of that opinion; again quoting directly from Nelson:

Upon retrial of the liability issues to a jury, a second verdict was returned on August 24, 1979, again in favor of the plaintiffs, but this time finding Mrs. Nelson 20 percent negligent and the defendants 80 percent negligent. In a motion after verdict the plaintiffs, on September 6, 1979, requested judgment upon both the December 23, 1974, verdict and the August 24, 1979, verdict, together with costs and interest on the net amount of damages, at the rate of 7 percent, from the date of the first verdict until the date of entry of the judgment sought in the motion. The question of the date from which interest was payable was briefed and argued, and on November 27, 1979, the trial court ruled that the plaintiffs were entitled to interest on the net amount awarded to the plaintiffs from the date of the second verdict. Judgment was entered accordingly on January 21, 1980. From this judgment the plaintiffs appealed. (Emphasis added.)

Following the first trial seven-and-one-half months intervened from verdict to judgment. Following the second trial on liability only, almost five months intervened. Under the provisions of Wise.Stat.Ann. § 806.06 (1977), which provide thirty days *910for the rendering and entry of judgment on the verdict, it is within the province of the court to stay the entry of judgment even beyond the thirty days, where, as in Nelson I (Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 259 N.W.2d 48 (1977)) post-verdict motions are filed such as for a non-suit and a directed verdict, at pp. 50, 51. Suffice it to say, then, that the distinction between post-verdict interest (Wisconsin) and post-judgment interest (Idaho) is a distinction without a difference. Moreover, we are unable to see that the Wisconsin court’s mention of post-verdict interest was a necessary or integral part of its determination to award interest on damages which had been finally and conclusively liquidated, converting non-monetary concepts of personal injury into dollars, thus triggering the plaintiffs’ right to interest — because once this figure is reached the parameters of the debt have been established, and the case no longer involved damages which are wholly at large.

The essential fact in Nelson and here was that after the adjudication of damages at the first trial, they were readily ascertainable. The Nelson Court’s explanation of the effect of an adjudication of damages applies equally well if not better to an adjudication in the form of a final judgment as it does to a verdict:

In a personal injury case, the verdict which assesses the plaintiff’s damages is significant because it converts nonmonetary concepts of personal injury into dollars. We believe it is that conversion which, under this statute, triggers the plaintiff’s right to interest payments because once this figure is reached the parameters of the “debt” have been established and the case no longer involves “damages which are wholly at large.” 1 Sutherland, Law of Damages, sec. 347, 1092 (4th ed. 1916). Quoted in first opinion, p. 905, 728 P.2d p. 1314.

Finally, and of most importance, the Nelson Court explained why a redetermination of the comparative fault of all parties at a second trial is no bar to interest accruing on damages adjudicated at the first trial. From pages 905-06, 728 P.2d pages 1314-15 of our first opinion, where we quoted directly from Nelson:

A dispute as to a defendant’s liability has never been recognized as a bar to the payment of interest____ The allocation of causal fault with its corresponding mathematical impact upon the dollar amount ultimately due a plaintiff is far more a question of liability than of damages, since it is related only to determining degrees of culpability and not to quantifying the value of a person’s actual injuries____ It follows that the application of our contributory negligence statute should not operate to the plaintiffs disadvantage in a situation where, as in this case, the damages are fixed by a prior verdict, but the adjustment for relative fault must await the determination of the liability issues in a subsequent trial. (Emphasis added.)1

The mere fact the Nelson spoke of post-verdict interest does nothing to make the *911Wisconsin courts rationale inapplicable in this case where the monetary adjudication of damages was specifically affirmed in Leliefeld I.

At the first trial appealed from in Leliefeld I, the jury by its verdict, made two determinations. It allocated the causal negligence of the parties — “Leliefeld (10%), Carnline (65%) and the State (25%). The jury found damages as follows: Donald L. Leliefeld ($400,000), Jewel H. Leliefeld ($20,000), and Nabisco ($13,946.62).” Leliefeld I, 104 Idaho at 361-62, 659 P.2d at 115-16.

The court’s opinion in Leliefeld I provides the court’s judgment: “Because we find no reversible error with respect to the determination of damages ... we affirm that determination.2 (citing cases)____ We affirm in part and reverse in part and remand for further proceedings in accordance with this opinion.” Leliefeld I, 104 Idaho at 375, 659 P.2d at 129 (emphasis added). That judgment became the judgment of this court affirming the lower court’s judgment on the verdict as to damages caused to Mr. and Mrs. Leliefeld and to Nabisco.3

In the Nelson case, the Wisconsin court could have referred the accruing of interest to the time of entry of the judgment on the verdict — which was on August 5,1975 — but apparently chose not to do so because of the seven-and-one-half month delay in disposing of post-verdict motions. The post-verdict statute was available; that court chose to utilize it. But it is inescapable that the rationale of its decision would have been equally applicable had judgment on the verdict been entered immediately as it is in Idaho — in which event it would have referred to it post-judgment interest statute. Wisc.Stat.Ann. § 815.05(8).

For the foregoing reasons, we continue to adhere to our previous opinion, dated January 16, 1986.

DONALDSON, C.J. and HUNTLEY, J., concur.

. The dissent overlooks this unambiguous discussion of the interplay between Wisconsin's contributory negligence statute and the propriety of interest on damages. The central issue in Nelson, which the dissent fails to understand, is whether a second trial to redetermine the comparative negligence of the parties obviates the defendant’s obligation to pay interest on the previously adjudicated damages which were affirmed on appeal. As the above quote shows, the dissent’s claim that Nelson did not involve Wisconsin’s comparative negligence statute is false.

Just as false is the dissent's assertion that we today hold the Idaho legislature to have adopted Wisconsin’s prejudgment interest statute. Quite to the contrary, as earlier explained, we find that statute to have no significance in the instant case. Our analysis focuses only on the effect of a second adjudication of liability after a first and affirmed adjudication of damages. This, after all, was the issue presented on appeal. The unalterable fact remains that Nelson, in applying pre-1971 Wisconsin case law, held that "the application of our contributory negligence statute should not operate to the plaintiff's disadvantage in a situation where, as in this case, the damages are fixed by a prior verdict, but the adjustment for relative fault must await the determination of the liability issues in a subse*911quent trial." We agree with the Wisconsin court’s determination of the import of its earlier case law.

Perhaps more importantly, we also agree with and adopt the Nelson court’s sound reasoning. See January opinion, pp. 907-08, 728 P.2d at pp. 1316-17. That reasoning is firmly rooted in the law of damages as established by McCormick and by this Court in Mitchell, Guyman, Farm Development, and Clover Creek. Id. As a consequence of our adopting the reasoning of Nelson, the dissent’s hypertechnical arguments against its precedential value are irrelevant as well as erroneous.

. The word determination in the context used, "affirmed” carries the connotation of a court's decision. "It implies an ending or finality of a controversy or suit.” Synonymous words are “Decision; Decree; Finding; Judgment; Opinion.” Black's Law Dictionary (rev. 5th ed. 1979).

. It is the dissent which resorts to a "play on words," by defining "judgment” as excluding a determination as to damages and propounding ipse dixit that when there is no "judgment,” as the dissent chooses to define it, there can be no interest. The dissent’s definition is in contrast with the definition to be found in Black’s Law Dictionary, quoted supra, n. 2. The dissent also ignores the fact that in Leliefeld I this Court recounted the first judgment of liability and damages, 104 Idaho at 362, 659 P.2d at 116, and then reversed the judgment in part and affirmed in part, the latter including the adjudication of damages. Id. at 375, 659 P.2d at 129.

In the process of this semantic game, the dissent demonstrates a total misunderstanding of what constitutes "liquidated damages" or a “readily ascertainable” amount of damages. As this Court has long recognized, a mere dispute over liability means nothing as to whether damages are sufficiently certain or warrant the accumulation of interest. Mitchell, supra, 95 Idaho at 234-35, 506 P.2d at 461-62 (quoting Clover Creek and Farm Development Corp., and citing Guyman); accord, Nelson, supra, 306 N.W.2d at 77. Once those damages are readily ascertained, as they unquestionably were here, then interest accrues, although ultimately subject to a finding of liability on the part of the defendant.