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Morlock v. St. Paul Guardian Insurance Co.8/29/2002
This case involves whether or not the district court erred in giving an aggravation of a pre-existing condition instruction based on CIVJIG 91.40 and, if so, whether a new trial is warranted. Appellants Dean E. Morlock and Judy A. Morlock brought suit against respondent St.áPaul Guardian Insurance Company after Dean Morlock was injured in an automobile accident, seeking to recover underinsured motorist benefits for Dean Morlock's injuries and for Judy Morlock's loss of consortium. At the end of trial, and over respondent's objections, the district court instructed the jury on aggravation of a pre-existing condition based on CIVJIG 91.40. The jury returned a special verdict awarding $508,060.50 in damages to Dean Morlock and $125,000 for loss of consortium to Judy Morlock. Respondent moved for judgment notwithstanding the verdict, a new trial, or, in the alternative, remittitur of the damages award. This motion was denied and respondent appealed, arguing that the district court erred in giving a prejudicial jury instruction based on CIVJIG 91.40 and in declining to grant remittitur. The court of appeals reversed and remanded for a new trial. We reverse.
On September 15, 1996, an underinsured motorist rear-ended a car driven by appellant Dean Morlock (Morlock). Appellants sued respondent seeking to recover underinsured motorist benefits for severe and permanent back and neck injuries alleged to be the result of this accident. Morlock conceded that he had some intermittent back strains through the years after injuring his back in 1957; however, he argued that he had fully recovered and had been free of any symptoms prior to the accident.
According to Morlock's own testimony, the accident caused, among others, the following consequences: (1) he is only able to sleep for 2 or 2 1/2 hours every night, (2)áhe is unable to pick up his grandson, (3) he is unable to walk up and down from his home to the lakeshore, (4) he is unable to do maintenance or chores around his house, (5)áhe is unable to go into his son's swimming pool, (6) he is unable to work as effectively at his job as a real estate agent, and (7) he can no longer serve as a condemnation commissioner or real estate teacher because of the sitting and standing required for these activities. He testified that all of these consequences were the result of his injuries from the accident rather than any of his pre-existing conditions. Judy Morlock did not testify.
Appellants presented several other witnesses at trial. Darlene Schuman, Morlock's sister-in-law, testified that before the accident Morlock was an active man who "was able to do anything that needed to be done at [appellants'] house," which included cleaning the garage, loading suitcases when traveling, and doing yard work. She also testified that Morlock was able to bowl, golf , and dance before the accident. She then testified that as a result of the accident Morlock cannot do the things that he used to be able to do and instead has to walk with two canes.
Frank Schuman, Morlock's brother-in-law, testified that during a hunting trip with Morlock around 1990, he witnessed Morlock dragging an 8-point mule deer, that dressed out at 205 pounds, back to camp by himself. He further testified that Morlock was always in good athletic condition before the accident and that Morlock had absolutely no problem with walking and turning when he hunted with him. Schuman testified that, prior to the accident, he had witnessed Morlock use a "monstrous chainsaw" that was "more than what [Schuman cared] to lift and carry, let alone use, but [Morlock] was very capable of using that to cut large trees."
Several other witnesses also testified about how Morlock's
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