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Anderson v. Independent School District 696

Court of Appeals of Minnesota

February 11, 2019

Paige Anderson, et al., Appellants,
v.
Independent School District 696, et al., Respondents, State of Minnesota, Department of Human Services, Plaintiff Intervenor, Hailey Salo, Respondent.

          Itasca County District Court File No. 31-CV-15-1344

          Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellants Paige Anderson, et al.)

          W. Paul Otten, Otten Law Offices, Burnsville, Minnesota (for plaintiff intervenor State of Minnesota, Department of Human Services)

          Timothy J. O'Connor, William L. Davidson, João C.J.G. de Medeiros, Thomas J. Evenson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota (for respondents ISD 696, et al.)

          Robert C. Barnes, McCarthy & Barnes, PLC, Duluth, Minnesota (for respondent Hailey Salo)

          Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Smith, Tracy M., Judge.

         SYLLABUS

         Minnesota Statutes, section 546.24 (2018), does not compel the district court to receive as final a civil jury's inconsistent verdict or prevent the district court from sending the jury out to deliberate further under section 546.16 to remedy the inconsistency, even if the district court has read the verdict aloud and received the jury's affirmation that it is their verdict.

          OPINION

          ROSS, JUDGE

         A school bus collided with a car, killing one of the car's passengers and severely injuring the car's other passenger and the driver. The injured passenger sued the drivers of both the car and the bus along with the school district that employed the bus driver. The state intervened as a plaintiff. The jury first returned a verdict inconsistently finding in one answer that the bus driver's negligence did not directly cause the collision and in another that it did. The district court sent the jury out to deliberate further to correct the defective verdict and the jury's amended verdict found that both drivers directly caused the collision. The district court received the amended verdict, and the school district and bus driver moved for judgment as a matter of law, a new trial, dismissal of the state's claim, and an order limiting its damages under Minnesota Statutes, section 466.04 (2018). The district court limited the state's damages to the statutory maximum for municipalities and denied all other motions. The injured passenger argues on appeal that the school district waived the right to limit its damages under section 466.04 by purchasing insurance coverage exceeding the statutory cap. The school district and bus driver argue in their cross-appeal that they are entitled to judgment as a matter of law or a new trial based on the original verdict and for other reasons. We affirm.

         FACTS

         In October 2009, a school bus operated by Ely Independent School District 696 (ISD 696) struck a Ford Taurus in an Itasca County intersection. The collision killed the car's front-seat passenger, Emerald Foss, and it severely injured driver Hailey Salo and rear passenger Paige Anderson. Bus driver Jay Poshak was employed by and working for the school district at the time of the crash. Two lawsuits commenced.

         In 2011, Linda Foss, trustee for the next of kin of Emerald Foss, sued ISD 696 and Poshak. Foss did not sue Salo, instead entering into a Pierringer agreement with Salo and a covenant not to sue. ISD 696 and Poshak brought a third-party claim against Salo. At a pretrial hearing, Salo's attorney stated that she "would agree to be bound by the liability determination in this file" and that, if the verdict found her more negligent than Poshak, she could not pursue a claim against him. Salo was not present at trial. The jury found that Poshak was not negligent and that Salo's negligence was the only direct cause of the collision.

         In 2015, passenger Anderson, her mother Teresa Dubovich, and her stepfather Michael Dubovich, sued ISD 696, Poshak, and Salo. They alleged that Poshak and Salo were negligent and that ISD 696 was vicariously liable for Poshak's negligence. The state sought to intervene, ostensibly to recover Medicaid funds it paid on Anderson's behalf to treat injuries she sustained in the collision. The state sent a notice of intervention to ISD 696 and Poshak but did not file it or its civil complaint in the district court. ISD 696 and Poshak initially objected to the intervention, but soon withdrew their objection. The district court joined the state as a plaintiff intervenor.

         Salo filed a cross-claim against ISD 696 and Poshak, alleging that Poshak was negligent and that ISD 696 was vicariously liable for his negligence.

         ISD 696 and Poshak moved for summary judgment, arguing that Salo's cross-claim should be dismissed and that she should be prevented from arguing that either Poshak or ISD 696 was liable because she agreed to be bound by the liability determination in the Foss case in any subsequent action. ISD 696 and Poshak alternatively argued that Salo's agreement to be bound by the jury's liability determination in the Foss suit prevented her from claiming that ISD 696 or Poshak was liable. The district court granted ISD 696 and Poshak's motion to dismiss Salo's cross-claim but held that Salo could attempt to prove at trial that Poshak was more at fault than she.

         The jury heard the evidence and returned a verdict finding both Salo and Poshak negligent but inconsistently finding in one answer that only Salo's negligence directly caused the collision and finding in a different answer that both Salo's and Poshak's negligence directly caused the collision, apportioning Poshak's fault at 10% and Salo's at 90. The district court discovered the inconsistency while reading the verdict aloud. The judge paused the reading and noted the problem for the attorneys, and then she completed reading the verdict. The judge then asked the jury as a whole if it was their verdict, and the jurors answered, yes. The judge then excused the jurors from the courtroom, but did not discharge them from the case. After discussing options to resolve the inconsistency-each side urging the court to receive the verdict and interpret it in a way that favored that side- the judge called the jurors back into the courtroom and instructed them to deliberate further. She told them to pay attention to the apportionment-of-fault question.

         The jury left to deliberate. Nineteen minutes later, the jury foreperson sent a note to the judge:

We are confused as to what we are asked to do.
We did not believe Mr. Poshak's negligence was a direct cause.
[H]ow would you like us to fix #5 [the apportionment of fault question]?
Are we allowed to cross it off after re-reading the instructions?
(the %'s in #5)

         The judge discussed with the attorneys how to answer. The judge then responded with a typewritten statement: "Yes, you ...


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