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Cottrell v. Burlington Northern11/2/1993
e, deemed denied, and this appeal was taken.
On appeal, defendant cites written agreements by Cottrell to the effect that money advanced would be deducted from any ultimate settlement or judgment paid to him. It cites the stipulation entered into during the time of trial, and it relies on our prior decision in Kalanick v. Burlington Northern (1990), 242 Mont. 45, 788 P.2d 901, where we held that the railroad was entitled to have the judgment entered against it offset by the amount which it had previously advanced to the injured employee in that case. We also held in Kalanick that the railroad was entitled to an offset for sickness payments made to its employee pursuant to a collective bargaining agreement adopted by the employee's union.
In response to defendant's argument on appeal, Cottrell concedes that defendant has a right to an offset for sickness benefits previously advanced in the amount of $6492.27, but denies that it has a right to any offset for wage benefits advanced because the general nature of the verdict form makes it impossible to determine what, if any, amounts were awarded by the jury as damages for wage loss.
We note that, while Cottrell is correct that due to defendant's objection, an exact apportionment of the jury's verdict between general damages and wage loss cannot be made, the jury's verdict was for an amount in excess of $1.3 million. Cottrell claimed wage loss in the amount of $862,230, and general damages of from $700,000 to $1,000,000 for pain and suffering. By logical deduction, at least $300,000 of Cottrell's recovery had to be compensation for wage loss.
Therefore, we conclude that the District Court erred by refusing to offset the judgment entered against defendant by those amounts previously advanced for wages and supplemental sickness benefits, other than those benefits paid for medical expenses. We conclude that since compensation for medical expenses was not claimed by Cottrell, defendant is not entitled to an offset against the judgment for those amounts. We remand to the District Court for a determination of the exact amount of offsets to which defendant is entitled. We otherwise affirm the jury's verdict and the judgment of the District Court entered pursuant to that verdict.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and GRAY concur.
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