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Heine v. Simon

January 27, 2004


Hennepin County District Court File No. PI 00-6975

Considered and decided by Lansing, Presiding Judge; Minge, Judge; and Wright, Judge.


1. Where there is neither a "single indivisible injury" nor uncertainty as to the ability to apportion damages caused by successive tortfeasors, the joint-and-several-liability provision of CIVJIG 91.40 is inapplicable.

2. Where the adjudicated issue in a workers' compensation hearing is not identical and the hearing did not afford a full and fair opportunity to be heard on the issue, the doctrine of collateral estoppel does not preclude a party injured during the scope of employment from litigating the issue of lost wages in a personal-injury action against a third-party tortfeasor.

The opinion of the court was delivered by: Wright, Judge



Appellant James Heine brought a lawsuit against State Farm Insurance Company and respondent Valerie Simon to recover damages for injuries arising from two automobile accidents occurring five months apart, in September 1993 and February 1994. The district court severed the claims against State Farm and Simon, reasoning that "the two accidents are not part of the same series of occurrences and are not factually connected to each other." Separate jury trials were held, and a jury awarded Heine $16,900 for injuries from the 1994 accident.

On appeal from the district court's denial of his motion for a new trial in the litigation arising from the 1994 accident, Heine argues that the district court erred in declining to instruct the jury in accordance with CIVJIG 91.40. Specifically, Heine maintains that the district court erroneously shifted the burden of establishing apportionment from Simon to Heine by failing to instruct that, if the jury "cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then defendant is liable for all the damages." Heine also argues that the district court abused its discretion in denying his motion for a new trial because (a) counsel for Simon committed misconduct during cross-examination and closing argument and (b) the jury's damage award was insufficient and influenced by passion or prejudice. By notice of review, Simon challenges the denial of her motion for remittitur and additional collateral-source offsets, arguing that the district court (a) abused its discretion in declining to apply the doctrine of collateral estoppel to the issue of Heine's lost wages and (b) improperly calculated the collateral-source offsets for past medical benefits received by Heine. We affirm.


On September 23, 1993, appellant James Heine was stopped at a traffic light while performing a work-related service call when his vehicle was struck from behind by a vehicle driven by an uninsured motorist. Heine suffered injuries to his neck, back, and right shoulder. Treatment for these injuries began after the accident and was scheduled to proceed through early February 1994. On February 8, 1994, respondent Valerie Simon was changing lanes in front of Heine on the highway when she lost control of her vehicle. Heine, who was on a service call for work, swerved to avoid a head-on collision with Simon and struck a pole. In this accident, Heine received injuries to his neck and lower back.

At the time of both accidents, Heine was working at Apple Automatic Food Service (Apple). His job duties included service calls to clients and office work. Heine filed a workers' compensation action in February 2000, claiming that his injuries from the 1994 accident restricted him to part-time work, forcing him to terminate his employment at Apple in August 1994. Heine was granted workers' compensation benefits for medical expenses and lost wages. But, based on a determination that the evidence presented in the workers' compensation proceeding was insufficient to establish a causal relationship between the injuries sustained in the accidents and his loss of earnings between September 1994, when he became self-employed, and December 2000, when the workers' compensation hearing concluded, benefits were denied for wage loss during this period.

In his personal-injury action, Heine served a complaint seeking damages for the injuries caused by both car accidents, naming his insurer State Farm Insurance Company and Simon as defendants. The district court severed the claims against State Farm and Simon and sent them to non-binding arbitration. The defendants objected to the arbitration decisions; and each case proceeded to trial. This appeal involves issues arising from the jury trial for the 1994 accident.

At trial on claims related to the 1994 accident, medical experts testified as to the extent of Heine's injuries, including a herniated disc in the neck, that were attributable to each accident. Heine called three medical experts. Dr. Trobiani, a neurologist, testified that Heine sustained injuries to his neck and lower back in both accidents. In Dr. Trobiani's opinion, the herniated disc in Heine's neck, as well as a permanent injury to Heine's right shoulder, were caused solely by the 1994 accident.

Dr. Engel, Heine's treating physician, testified that after the 1993 accident, but before the 1994 accident, Heine was treated for injuries to his neck, lower back, and right shoulder. Dr. Engel opined that the 1993 accident was the primary cause of Heine's injuries and the 1994 accident merely aggravated these injuries temporarily. Dr. Engel attributed 60 percent of Heine's neck injury to the 1993 accident and 40 percent to the 1994 accident. Although Heine had a congenital, degenerative condition in his lower back that became symptomatic as a result of the 1993 accident, Dr. Engel opined that the 1994 accident caused 75 percent of Heine's lower-back injury, and the remaining 25 percent was caused by the 1993 accident.

Dr. Seizert, who also treated Heine's injuries, testified that Heine's herniated disc became symptomatic after the 1993 accident. But she was unable to give an opinion as to what injuries, if any, were caused by the 1994 accident.

Dr. McPartlin, a neurologist called by Simon, testified that Heine did not suffer any injury to the right shoulder or any additional injury to his lower back as a result of the 1994 accident. Dr. McPartlin opined that, based on Heine's described symptoms, the herniated disc predated the 1994 accident.

Heine also testified regarding his injuries and was impeached with admissions to unrelated false statements on his income tax returns.

Heine moved the district court to instruct the jury on aggravation of a pre-existing injury using CIVJIG 91.40. The district court denied the motion and instead instructed the jury using CIVJIG 163. The jury awarded Heine $16,900 in damages caused by the 1994 accident.*fn1

Heine moved for a new trial on damages, or alternatively for a conditional additur. Simon moved for costs based on Minn. R. Civ. P. 68, collateral-source offsets, and remittitur. The district court denied all posttrial motions except Simon's motion for collateral-source offsets, which it granted in part and denied in part. Heine appeals from the denial of his motion for a new trial. Simon filed a ...

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