Cara Zimmer, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1642

Cara Zimmer,
Appellant,

vs.

Raymond Landry,
Respondent.

Filed June 18, 2018
Affirmed
Kirk, Judge

Stearns County District Court
File No. 73-CV-16-1031

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellant)

Brendan R. Tupa, Law Offices of Thomas P. Stilp, Golden Valley, Minnesota (for
respondent)

Considered and decided by Peterson, Presiding Judge; Kirk, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant Cara Zimmer argues that she is entitled to a new trial on the issue of
damages because the district court failed to properly instruct the jury on the 60-day
disability threshold of Minn. Stat. § 65B.51, subd. 3 (2016), and that the district court erred

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in allowing respondent Raymond Landry to request a dete rmination of collateral sources
more than ten days after the entry of the verdict. We affirm. 1
FACTS
In 2013, Zimmer and Landry were involved in an auto collision. Zimmer filed suit
against Landry, alleging that Landry’s negligence caused the collision and her resulting
permanent and serious injuries. At trial, Zimmer testified that she began feeling soreness
in her neck and arm the night after the crash and continued to suffer from that soreness.
She testified that this soreness sometimes led to serious headaches and that the headaches
and soreness are alleviated after chiropractic treatments. She testified t hat the soreness
affected the way she exercises and kept her up at night at times. She presented evidence
that she sought chiropractic treatment for her injuries 12 times from January 2013 through
June 2013. Her chiropractor testified that , over time, Zimmer’s condition improved and
she decreased the frequency, but did not discontinue, the chiropractic treatments.
Before trial, Landry proposed a special verdict form that included an option for the
jury to find that Zimmer sustained a disability for 60 days or more after the accident. The
district court did not submit the question of whether Zimmer sustained a 60 -day disability

1 Landry asserts that he is entitled to damages and double costs under rule 138 of the
Minnesota Rules of Civil Appellate Procedure. A party may be entitled to single or double
damages “if an appeal delays proceedings on a judgment of the trial court and a ppears to
have been taken merely for delay.” Minn. R. Civ. App. P. 138. For damages to be awarded
under rule 138, “it must be apparent that the appeal was taken merely for delay.” Sievert
v. LaMarca , 367 N.W.2d 580, 590 (Minn. App. 1985) , review denied (Minn. July 17,
1985). Damages under rule 138 will not be awarded if an appellant raises a “sufficient
question to justify the appeal.” Id. Here, there is no basis to award Landry damages or
costs under rule 138 because Zimmer’s claims on appeal are meritorious, and there is no
evidence the appeal was undertaken in bad faith or for the sole purpose of delay.

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to the jury. On January 11, the jury found that (1) Landry’s negligence caused the accident;
(2) Zimmer was entitled to past hea lthcare expenses in the amount of $1,691.28; and
(3) Zimmer was entitled to $2,000 for past pain, disability, and emotional distress. The
jury found that Zimmer’s injury was not permanent and that her medical expenses did not
exceed $4,000. The district court determined that Zimmer was not entitled to recover
damages because she “failed to meet the tort thresholds as required by law” and entered
judgment on behalf of Landry.
On February 1, Zimmer moved to vacate the judgment entered on January 12 and
for entry of judgment in her favor because she was not barred from recovering her
economic damages for past healthcare expenses . Zimmer also moved for a new trial,
arguing that the district court erred in “refusing to allow [her] to argue that she met the 60-
day disability threshold.” Zimmer also argued that Landry was barred from moving for a
determination of collateral sources under Minn. Stat. § 548.251, subd. 2 (2016) , because
he failed to move for a determination within ten days after the jury returned its verdict.
On May 22, the district court entered judgment on behalf of Zimmer, awarding her
$1,691.28 based on the jury’s award after concluding that the tort threshold did not
preclude her from recovering economic damages. The district court noted t hat the
collateral-source issue was raised at a March 6 hearing and determined that entry of the
amended order for judgment triggered the ten -day filing period for collateral -source
offsets. On May 2 4, Landry filed a motion for collateral offsets , and the district court
awarded him $6,675.08 on September 14, 2017. This appeal follows.

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D E C I S I O N
I. The district court did not abuse its discretion in denying Zimmer’s motion for
a new trial.

Landry proposed a special verdict form that included an option for the jury to find
that Zimmer sustained a disability for 60 days or more after the accident under Minn. Stat.
§ 65B.51, subd. 3(b). The district court informed the parties that the jury would not receive
an instruction on the 60 -day disability threshold because Zimmer had not presented
sufficient evidence on the issue. After the jury returned its verdict, Zimmer moved for a
new trial on the grounds that the jury should have received the instruction on the 6 0-day
disability threshold. The district court denied Zimmer’s motion after determining that she
failed to present sufficient evidence on the 60 -day disability issue to entitle her to the
instruction. Zimmer argues that the district court’s refusal to in struct the jury on the 60 -
day disability threshold was error and that she is entitled to a new trial on the issue of
damages. We disagree.
We review a district court’s new -trial decision for a clear abuse of discretion.
Moorhead Econ. Dev. Auth. v. A nda, 789 N.W.2d 860, 892 (Minn. 2010). “The district
court has broad discretion in determining jury instructions and we will not reverse in the
absence of abuse of discretion.” Hilligoss v. Cargill, Inc. , 649 N.W.2d 142, 147 (Minn.
2002). “A party is entitled to a jury instruction that sets forth his or her theory of the case
if evidence supports it and if it is consistent with the applicable law.” Kirsebom v.
Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992) (citation omitted). “Errors in jury

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instructions warrant a new trial only if they destroy the substantial correctness of the
charge, cause a miscarriage of justice, or result in substantial prejudice.” Id.
The Minnesota No -Fault Automobile Insurance Act allows the recovery of
noneconomic damages o nly where the plaintiff’s damages exceed $4,000 or the injury
results in permanent disfigurement, permanent injury, death, or disabili ty for 60 days or
more. Minn. Stat. § 65B.51, subd. 3. To recover noneconomic damages, the plaintiff must
“prove the ele ments of negligence plus the additional element of a tort threshold under
Minn. Stat. § 65B.51, subd. 3.” Nemanic v. Gopher Heating & Sheet Metal, Inc. , 337
N.W.2d 667, 670 (Minn. 1983). The tort threshold “must be pleaded and proved to recover
damages for a noneconomic detriment.” Id. at 669. “Where an issue is raised as to whether
a threshold requirement of section 65B.51, subd. 3 was satisfied, the question should be
submitted to the jury as part of the special verdict.” Id. at 670 (citing Murray v. Walter,
269 N.W.2d 47, 50 (Minn. 1978)). For the purposes of Minn. Stat. § 65B.51, “disability
means the inability to engage in substantially all of the injured person’s usual and
customary daily activities.” Minn. Stat. § 65B.51, subd. 3. “The 60 -day requirement is
cumulative and does not require 60 consecutive days of disability.” Lindner v. Lund, 352
N.W.2d 68, 71 (Minn. App. 1984).
The district court did not abuse its discretion in denying Zimmer’s request for a new
trial because Zimmer failed to present sufficient evidence on the 60-day disability issue to
receive the instruction. Zimmer failed to specifically allege she suffered a 60-day disability
in her complaint. Her testimony established the following facts: (1) she had soreness in
her neck and shoulder that caused infrequent headaches; (2) she did not miss work in the

6
days after the accident and has not had to change anyth ing at work due to her injuries;
(3) because of her injury and the risk of headaches, she no longer lifts weights; and (4) she
received chiropractic therapy twice per week in the immediate aftermath of the accident
and 12 times through June 2013. There is no evidence tha t Zimmer missed any days of
work or was confined to the hospital or her home for any period of time after the accident.
Even including the days that Zimmer sought chiropractic care, the evidence would not
support a conclusion that she was unable to engage in all, or substantially all, of her usual
or customary daily activities for the 60-day period. Accordingly, we conclude that the
district court did not abuse its discretion and that Zimmer is not entitled to a new trial on
the issue of damages.
II. The district court properly determi ned collateral s ources under section
548.251, subdivision 2.

Zimmer argues that the district court erred in considering Landry’s motion for
determination of collateral sources under Minn. Stat. § 548.251, subd. 2. Zimmer asserts
that the motion was untimely because the clear language of the statute requires that th e
motion be brought within ten days of the return of the jury’s verdict. We disagree.
Minnesota Statutes section 548.251, subdivision 2, provides that:
In a civil action . . . when liability is admitted or is determined
by the trier of fact, and when d amages include an award to
compensate the plaintiff for losses available to the date of the
verdict by collateral sources, a party may file a motion within
ten days of the date of entry of the verdict requesting
determination of collateral sources.

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(Emphasis added.) Zimmer argues that “the date of entry of the verdict” means the date
the jury returns the verdict. Questions of statutory interpretation are reviewed de novo.
Midland Credit Mgmt. v. Chatman, 796 N.W.2d 534, 535 (Minn. App. 2011). This court
construes “technical words and phrases ‘according to [their] special meaning’ and other
words and phrases according to their ‘common and approved usage.’” Cocchiarella v.
Driggs, 884 N.W.2d 621, 624 (Minn. 2016) (quoting Minn. Stat. § 645.08(1) (2014)). We
construe a statute in a manner that gives effect to all of its provisions. Minn. Stat. § 645.16
(2016).
“[T]he date of entry of the verdict” is a technical phrase that has been interpreted to
mean the date of the entry of judgment on a special ver dict. See Wertish v. Salvhus , 555
N.W.2d 26, 28 (Minn. App. 1996), rev’d on other grounds, 558 N.W.2d 258 (Minn. 1997);
Braginsky v. State Farm Mut. Auto. Ins. Co., 624 N.W.2d 789, 795-96 (Minn. App. 2001);
Lee v. Hunt, 642 N.W.2d 57, 59 n.1 ( Minn. App. 2002). “The filing of a district court’s
order for judgment pursuant to a jury’s special verdict triggers the time to file a motion for
determination of collateral sources.” Braginsky, 624 N. W.2d at 795-96. “Construing
‘entry of the verdict’ to mean fili ng of the district court’s order for judgment is consistent
with” the Minnesota Rules of Civil Procedure and “[a]ny other construction would render
the statutory ten -day period meaningless.” Id. at 796. The rules of civil procedure treat
the entry of a general verdict differently than the entry of a special verdict. Minn. R. Civ.
P. 58.01 provides:
[J]udgment upon the verdict of a jury, or upon an order of the
court for the recovery of money only or for costs or that all
relief be denied, shall be ente red forthwith by the court

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administrator; but the court shall direct the appropriate
judgment to be entered upon a special verdict or upon a general
verdict accompanied by answers to interrogatories returned by
a jury pursuant to Rule 49 or upon an order of the court for
relief other than money or costs. Entry of judgment shall not
be delayed for the taxation of costs, and the omission of costs
shall not affect the finality of the judgment. The judgment in
all cases shall be entered and signed by the court administrator
in the judgment roll; this entry constitutes the entry of the
judgment; and the judgment is not effective before such entry.

(Emphasis added.) While court administrators are to enter general verdicts forthwith, the
court administrator is n ot to enter judgment on special verdicts “until after the court has
directed the appropriate judgment to be entered.” Kluge v. Benefit Ass’n of Ry. Emps., 276
Minn. 263, 273, 149 N.W.2d 681, 688 (1967). When a special verdict is used “the jury
finds facts, after which it becomes the duty of the court to apply the law to those facts and
render a judgment.” Id. Accordingly, a special verdict is not “entered” when it is returned
by the jury, rather it is entered when the district court applies the facts found by the jury to
the law and files an order directing entry of judgment.
Because a special verdict is not entered until judgment has been entered on the
verdict by the district court, there was no error in allowing Landry to file his collateral -
source motion after the entry of judgment on May 22. A motion for a determination of
collateral sources cannot be made until (1) liability has been determined by the fact-finder;
(2) damages have been awarded to compensate the plaintiff; and (3) the verdict has been
entered. See Minn. Stat. § 548.251, subd. 2. Landry was not authorized by the statute to
file a motion for determination of collateral sources until Zimmer was awarded damages.
Because no damages were awarded in the initial January 12 order for judgment, Landry

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was not entitled to file a motion for determination of collateral sources at that time. Once
judgment was entered awarding damages to Zimmer, Landry timely filed a motion for
determination of collateral sources. Therefore, there was no erro r in permitting Landry to
file a motion for determination of collateral sources.
Affirmed.