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Cosgriff v. Hallgren

Court of Appeals of Minnesota

September 9, 2013

Tod A. Cosgriff, Appellant,
v.
Kimberly F. Hallgren, Respondent. Michelle L. Cosgriff, Plaintiff,

UNPUBLISHED OPINION

St. Louis County District Court File No. 69DU-CV-11-953

Robert H. Magie, III, Duluth, Minnesota (for appellant)

David M. Johnson, Thibodeau, Johnson & Feriancek, P.L.L.P., Duluth, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Hooten, Judge.

HALBROOKS, Judge

Appellant challenges the district court's denial of his motion for a new trial, arguing that the district court erred by refusing to submit the issue of his claimed loss of future earning capacity to the jury. We affirm.

FACTS

In December 2008, appellant Tod Cosgriff was a passenger in a vehicle driven by his wife, Michelle Cosgriff, returning home following outpatient surgery on his right ankle. He was seated in the front passenger seat when a vehicle operated by respondent Kimberly Hallgren struck the Cosgriffs' vehicle. Cosgriff sustained multiple fractures and a closed-head injury, and was hospitalized for five days. Toward the end of January 2009, he developed deep vein thrombosis (DVT) in his right leg and was hospitalized for seven additional days.

Cosgriff and his wife sued Hallgren in March 2011.[1] Hallgren admitted liability for the accident; the only issue for the jury was damages. Cosgriff testified that he is the sole owner of two small companies in the home-heating industry-Cosgriff Sheet Metal and Northland Geothermal. Cosgriff acknowledged that, at the time of trial, he continues to be involved in much of the physical work of the company and that he works 60 to 70 hours a week, including nights and weekends.

When Cosgriff returned to work in 2009, he noticed concentration issues. He described his concentration as "poor, " but stated that it returns to normal when he is "relaxed and not having to deal with anything." Cosgriff testified that he becomes mentally and physically fatigued more easily than he did before the accident, particularly toward the end of the day. When asked if he has other issues relating to the closed-head injury, Cosgriff testified that he has problems with his memory and now has to "take pictures and write things down on a notepad to keep things separate." He is also "short" with customers and "not as concerned with spending as much time with them." Cosgriff stated that his overall mental status "leveled off" after the first year following the accident and has "pretty much stayed the same" since. Finally, Cosgriff testified that the mechanical parts of his work still come easily, such as "doing the service call and going in and fixing a furnace[.] I'm very comfortable doing that." He conceded that he is still able to work and, from a physical standpoint, can do everything he did before the accident. Some things just take more effort than before.

On cross-examination, Cosgriff testified that in the four years immediately preceding the accident, his annual income from the two businesses decreased from $88, 000 in 2005 to $14, 400 in 2008. In 2009, the year after the accident, his income was more than $44, 000. Since 2009, Cosgriff's income has dropped because of "lots of things with the economy." He testified that in 2009, his businesses benefited from federal programs designed to address the housing downturn. Cosgriff agreed that none of his medical providers have given him any employment-related restrictions since he returned to work in 2009. And he testified that his last medical treatment occurred almost two years prior to trial.

William Fleeson, M.D., an occupational-medicine specialist, testified on behalf of Cosgriff. Dr. Fleeson stated that he specializes in "diagnosing, treating and rehabilitating from problems in the workplace, " and that he has 10 to 20 years' experience "evaluating people who are being looked at as to whether or not they have an ongoing, long-term physical or mental impairment from some problem."

Dr. Fleeson testified that Cosgriff has permanent pain in his right forearm as well as loss of nerve function in his right arm and hand. He stated that Cosgriff has continuing symptoms because of the DVT, including swelling, pain, and difficulty with activities such as climbing and crouching, and that Cosgriff is likely to ...


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