                  United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 95-4153
                                  ___________

Angela Johnson,                       *
                                      *
           Appellant,                 *   Appeal from the United States
                                      *   District Court for the District
v.                                    *   of North Dakota.
                                      *
Larry Methorst,                       *
                                      *
           Appellee.                  *

                                  ___________

                   Submitted:     October 23, 1996

                         Filed:   April 4, 1997
                                  ___________

Before MAGILL, BRIGHT and MURPHY, Circuit Judges.
                               ___________


BRIGHT, Circuit Judge.


     Angela Johnson brought this civil action against Larry Methorst for
bodily injuries sustained in a motor vehicle accident.     The jury awarded
Johnson damages of $54,435, including $9,935 for past medical expenses and
$30,000 for future medical expenses.      The magistrate judge reduced the
award for past medical expenses by $9,935 and the award for future medical
expenses by $20,065, thereby reducing the award by a total of $30,000,
representing the full amount of Methorst’s no-fault insurance benefits.
Johnson appeals the reduction of the award for future medical expenses.
We reverse and remand.
I.   BACKGROUND


     On June 7, 1992, while driving a motor vehicle, Methorst struck
Johnson, a pedestrian, injuring her knee and back.         Alleging diversity
jurisdiction, Johnson brought a tort action for past and future damages in
federal court.    Methorst admitted liability but disputed the nature and
extent of Johnson’s injuries.       Specifically, he claimed that Johnson’s
physical injuries pre-existed the accident.         The jury awarded Johnson
damages of $54,435 as follows:


     a.     Past medical expenses                               $ 9,935
     b.     Past pain, discomfort, mental
            anguish and/or permanent disability                    1,000
     c.     Past loss of productive time                               0
     d.     Future medical expenses                               30,000
     e.     Future pain, discomfort, mental
            anguish and/or permanent disability                    6,000
     f.     Future loss of productive time                         7,500



     The court initially entered a judgment for $54,435, but then reduced
the award by $9,935 for Johnson’s past medical expenses because Methorst’s
no-fault insurance carrier already reimbursed or was about to reimburse
Johnson for those costs.   As we have observed, the court also reduced the
award for future medical expenses by $20,065.     Thus, the reduction totalled
$30,000, which represented the full amount of Methorst’s no-fault insurance
benefits.     The court reasoned that Johnson’s past and future medical
expenses constituted economic loss “paid or to become payable” as basic no-
fault benefits pursuant to the North Dakota Auto Accident Reparations Act
(No-Fault Act), N.D. Cent. Code Ann.




                                      -2-
§ 26.1-41 (1995), and, therefore, reduced the award to prevent Johnson from
receiving a double recovery.    The court then entered a final judgment in
the amount of $24,435.


      Methorst, as Appellee, argues that the district court properly
reduced the award because “[s]ecured persons are exempt from liability in
any action for economic loss, either past or future, to the extent no-fault
benefits are available.”     Appellee Br. at 3.    That analysis, however,
misreads the unambiguous wording of the statute as applied to the facts of
this case.      No-fault benefits are not available for Johnson’s future
medical expenses and, therefore, the reduction was inappropriate.


II.   DISCUSSION


      On appeal, Johnson argues that the No-Fault Act does not authorize
reducing her award for future medical expenses.      We review de novo the
district court’s interpretation of a state statute.     Thompson v. United
States, 989 F.2d 269, 270 (8th Cir. 1993).   To interpret the No-Fault Act,
a court’s “primary objective is to ascertain the intent of the legislature
by looking at the language of the statute itself and giving it its plain,
ordinary and commonly understood meaning.     Consideration should also be
given to the context of the statutes and the purposes for which they were
enacted.”    Van Klootwyk v. Arman, 477 N.W.2d 590, 591-92 (N.D. 1991)
(citations omitted).     We begin, therefore, with the language of the No-
Fault Act itself and the North Dakota Supreme Court’s interpretation of
that statute.


      The No-Fault Act entitled Johnson to recover certain benefits, termed
“basic no-fault benefits,” from the no-fault insurer for “economic loss
resulting from accidental bodily injury” up to the




                                    -3-
sum   of   $30,000.   N.D.   Cent.   Code   Ann.   §   26.1-41-01(1)   (including
definitions).   The No-Fault Act defines “economic loss” to include medical
expenses and work loss.1     In addition, however, the No-Fault Act contains
the following limited exemption from tort liability for “secured persons”
such as Methorst:


      1. In any action against a secured person to recover damages
      because of accidental bodily injury arising out of the
      ownership or operation of a secured motor vehicle in this
      state, the secured person is exempt from liability to pay
      damages for:

. . . .

      b. Economic loss to the extent of all basic no-fault benefits
      paid or to become payable for such injury under this chapter .
      . . .


N.D. Cent. Code Ann. § 26.1-41-08.




      1
       The No-Fault Act includes the following definitions:

      2. 'Basic no-fault benefits' means benefits for economic
      loss resulting from accidental bodily injury.

. . . .

      7. 'Economic loss' means medical expenses, rehabilita-
      tion expenses, work loss, replacement services loss,
      survivors' income loss, survivors' replacement services
      loss, and funeral, cremation, and burial expenses.

. . . .

      9. 'Medical expenses' means reasonable charges incurred
      for necessary medical, surgical, x-ray, dental, pros-
      thetic, ambulance, hospital, or professional nursing
      services or services for remedial treatment and care
      rendered in accordance with a recognized religious
      healing method. . . .


N.D. Cent. Code Ann. § 26.1-41-01.

                                      -4-
        The district court construed this exemption to require not only a
$9,935 reduction in the judgment for Johnson’s past medical expenses (on
which no dispute exists), but also a $20,065 reduction for future medical
expenses, so as to total the full $30,000 allowable for no-fault benefits
under    Methorst’s     automobile   insurance   policy.     The    district   court
determined that future medical expenses constitute "economic damages," and
the provisions of the secured person exemption "applies to both past
('paid') and future ('to become payable') economic damages."              Dist. Ct.
Order at 3.     The issue here concerns the exclusion of $20,065 from the
future medical expenses award.


        The operative language of the No-Fault Act’s secured person exemption
is "economic loss to the extent of all basic no-fault benefits paid or to
become payable."      N.D. Cent. Code Ann. § 26.1-41-08(1)(b) (emphasis added).
Significantly, the statute speaks in terms of loss, not damages, and
whether no-fault benefits will "become payable."            Id.    According to the
statute,     no-fault    benefits    encompass   "medical   expenses,"    including
reasonable charges incurred for necessary "medical" and "surgical" services
as well as other health care services.           N.D. Cent. Code Ann. § 26.1-41-
01(9).
        The statute, however, limits the no-fault insurer’s obligation to
provide benefits.       For example, benefits are payable only after the no-
fault insurer receives "reasonable proof of the fact and the amount of loss
. . . ."    N.D. Cent. Code Ann. § 26.1-41-09(2).      Moreover, if a claim “has
been or may be made for past or future basic . . . no-fault benefits,” the
insurer may require the injured person to submit to a mental or physical
examination.     N.D. Cent. Code Ann. § 26.1-41-11.         Further, the no-fault
insurer is entitled to discover facts about the injured person and may seek
assistance of the court for such discovery.         N.D. Cent. Code Ann. § 26.1-
41-12.     Finally, the No-Fault Act allows a maximum of four years in




                                         -5-
which    to bring a claim for benefits, thereby limiting the no-fault
insurer’s obligation to provide benefits into the future:


        If no basic or optional excess no-fault benefits have been paid
        for loss, an action for the benefits may be commenced not later
        than . . . four years after the accident . . . . If basic or
        optional excess no-fault benefits have been paid for loss, an
        action for recovery of further benefits for the loss by either
        the same or another claimant, may be commenced not later than
        four years after the last payment of benefits.


N.D. Cent. Code Ann. § 26.1-41-19(1).


        Turning to the evidence of damages for future medical expenses in the
record, we note that both parties argued this issue as a matter of law.
The facts, however, play a significant role in the decision because the
court must determine whether the future damages, in this case medical
expenses, constitute an "economic loss" under the secured person exemption.
Such an economic loss occurs under the statute only if no-fault benefits
will "become payable."    N.D. Cent. Code Ann. § 26.1-41-08(1)(b).   Because
the parties failed to provide any trial testimony, we requested and
received the deposition testimony of three doctors who testified on behalf
of Johnson and one doctor who testified on behalf of Methorst.


        These depositions contain only opinions about future medical problems
that may arise for Johnson and fail to provide any information about
estimated costs for future medical treatment.    The evidence indicates that
Johnson will likely need prescriptions and treatment for the occasional
onset of pain throughout her life; that she may require a diskectomy or
surgery to install rods in her back; that she may be more susceptible to
injuries because of the accident; and that she may need a total knee
replacement in her




                                     -6-
retirement years.     This testimony in effect describes Johnson’s general
damages of future pain and suffering, and the risk of future medical
expenses, rather than any certain medical expenses. No certainty as to
treatment exists and, therefore, no estimate of actual future medical
expenses accompanied this testimony.2


     Nevertheless, no part of the jury’s award for future medical expenses
is likely to entitle Johnson to recover no-fault benefits despite a
possibility, or even a probability, of future medical problems.    Based on
the testimony in the record, it is apparent that:


     1.     Johnson never incurred the charges for future medical services
under N.D. Cent. Code Ann. § 26.1-41-01(9).


     2.      Because no certainty exists as to any treatment or costs,
benefits are not payable under the No-Fault Act.


     3.     Even if Johnson should require future treatment, she will incur
the expenses long after the four-year statute of limitations expires for
this 1992 accident.


     We refuse Johnson’s invitation to decide whether future medical
expenses are always excluded from the exemption.   What is important in this
case, is that the exemption’s language applies not to future damages, but
to "economic loss" to the extent of "no-fault benefits paid or to become
payable."     N.D. Cent. Code Ann.




     2
      We do not examine whether Johnson offered sufficient evidence
to support the verdict because Methorst conceded sufficiency.
Thus, we accept that the jury justifiably awarded $30,000 for
future medical expenses as damages. Notwithstanding the concession
and jury award, we do examine the quality of that evidence on the
issue whether benefits under no-fault will “become payable.”

                                     -7-
§ 26.1-41-08(1)(b)(emphasis added).                  The term "become payable" requires
                                           3
certainty, not mere probability.


        Thus, Johnson’s damages for future medical expenses do not qualify
for payable benefits under the No-Fault Act.                   Accordingly, the district
court       erred   by   reducing   Johnson’s        tort   recovery   for   future    medical
expenses.


        Although we can resolve this diversity case governed by state law
solely on the wording of the No-Fault Act, we look to North Dakota’s case
law for further guidance.           The North Dakota Supreme Court has not addressed
whether future medical expenses fall within the secured person exemption,
but   the     reasoning of North Dakota’s case law lends support to our
determination.


        In    Ellingson    v.   Knudson,       498   N.W.2d   814    (N.D.   1993),    Justice
Sandstrom ruled that an affidavit of a plaintiff's doctor failed to provide
sufficient evidence that the plaintiff met the $2,500 threshold for
establishing a serious injury under no-fault.                       Id. at 818.      Plaintiff
incurred actual medical expenses of $1,321.94.                Id. at 815.      The affidavit
stated:
        6. I believe that Mr. Ellingson will continue to incur medical
        expenses in the future for treatment of injuries sustained in
        the incident of December 28, 1987.     These expenses will be
        incurred on a periodic basis during the course of his life
        time. I would expect the periodic expenses to be at least as
        much as they have been on a periodic basis in the past. This
        opinion is based upon a reasonable medical certainty.




        3
      Webster's New World                  Dictionary         (2d    ed.     1984)    defines
"payable" as follows:

        1. Requiring payment on a certain date:      DUE.  2.
        Specifying payment to a particular person. 3. Capable
        of producing profit: PROFITABLE.

                                               -8-
Id. at 816.    In sustaining summary judgment for dismissal, the court
stated:


      The affidavit does not specify the treatment Ellingson will
      need in the future.    The affidavit does little more than
      conclude that expenses in the future should equal expenses
      already incurred.

            The speculative nature of anticipated expenses grows as
      the expenses are projected into the future. Accordingly, the
      need for specific facts establishing medical certainty grows
      with these projections.       Dr. Byron's affidavit suggests
      Ellingson may cross the medical expense threshold. The absence
      of specific facts, combined with a lifetime measure, however,
      fail to raise a genuine dispute of fact as to whether Ellingson
      will cross the threshold with reasonable medical certainty.
      Unspecified treatment over the next half century is too
      speculative to defeat summary judgment.


Id. at 818 (emphasis added).   This discussion indicates that even though
a doctor testifies with a reasonable degree of medical certainty that
future medical expenses may be incurred, such evidence is insufficient for
no-fault purposes.   Specific facts must be established.


      In Reisenauer v. Schaefer, 515 N.W.2d 152, 156 (N.D. 1994), the court
in an opinion by Justice Levine granted a new trial because the district
court may have erroneously excluded as exempt a jury award of $28,000 for
past economic loss (past productive time loss).    The plaintiff objected to
the exemption on grounds that it “would be ‘ludicrous’ to assume that he
had   received $28,900 in basic no-fault benefits.”          Id.   The court
emphasized that establishing economic loss under basic no-fault provisions
required certainty: “The plaintiff knows what his basic no-fault benefits
are, how much he has received, and how much he will get.       He also knows
what his unreimbursed economic damages are.”      Id.   In




                                   -9-
addition, the court held that the issue whether the plaintiff's "economic
loss exceeds the benefits paid or payable" is for the court, not the jury,
to decide.    Id.   Finally, the court reiterated that "[t]he primary purpose
of   the   No-Fault    Act   is   to   compensate   automobile   accident   victims
adequately."    Id. at 155.


      In this case, the admittedly liable tortfeasor seeks a windfall which
is certain:    a reduction in damages of more than $20,000.          No assurance
exists that Johnson will ever recover no-fault benefits for that amount or
any amount.    Indeed, we are quite certain that she will not.        A plaintiff
like Johnson is entitled to adequate compensation for her injuries.            See
Reisenauer, 515 N.W.2d at 155.            In Johnson’s case, that adequacy of
compensation is measured by her recovery of the amount specified in the
jury award, for if Johnson’s award is decreased by a court, the no-fault
insurer will not make up for such a decrease.


III. CONCLUSION


      The evidence in this case demonstrates that future medical expenses
are speculative for no-fault purposes.          Thus no further benefits will be
paid to Johnson.      As a result, the jury award cannot be reduced for future
medical expenses.       We reverse and remand for entry of an appropriate
judgment consistent with this opinion.4




      4
      The issue whether $7,500 in damages for future loss of
productive time should be exempt has not been addressed by the
parties on appeal, even though presented to but not reached by the
district court.    The record before us on appeal indicates that
there has been no past loss of productive time. We leave it to the
district court to consider that matter on remand if it is still an
issue between the parties.

                                         -10-
MAGILL, Circuit Judge, dissenting.


       Because I believe that the majority’s reading of North Dakota Century
Code   Annotated § 26.1-41-08(1)(b) (1995) is fundamentally flawed, I
respectfully dissent.


       In assessing the evidence of damages for future medical expenses, the
majority concludes that “[b]ecause no certainty exists as to any treatment
or costs, benefits are not payable under the No-Fault Act[, N.D. Cent. Code
Ann. Ch. 26.1-41 (1995)].”   Maj. Op. at 7 (emphasis added).   The majority
then holds: “[t]he term ‘become payable’ requires certainty, not mere
probability.   Thus, Johnson’s damages for future medical expenses do not
qualify for payable benefits under the No-Fault Act.”    Id. at 8 (emphasis
added).    The basic problem with the majority’s reading of § 26.1-41-
08(1)(b) is that, by stressing the requirement that future damages be
certain, the majority’s construction reads the word “become” out of the
statute in contravention of North Dakota law.    Cf. N.D. Cent. Code Ann. §
1-02-02 (1987) (“Words used in any statute are to be understood in their
ordinary sense . . . .”); N.D. Cent. Code Ann. § 1-02-03 (1987) (“Words and
phrases must be construed according to the context and the rules of grammar
and the approved usage of the language.”).
       I disagree with the majority’s reading of the statute because the
phrase “become payable” does not require the degree of absolute certainty
that the majority ascribes to it.    Indeed, the word “become” indicates a
future event; therefore, insofar as the future is inherently uncertain, the
phrase “become payable” necessarily indicates an event that is, to some
extent, inherently uncertain.


       However, under the majority’s reasoning, a future economic loss would
never be “certain” enough to fall into the “become




                                    -11-
payable” category.      Only a right to be paid that is currently due would be
certain.       As a result, under the majority’s reading, only a right to be
paid for an economic loss that is currently due would warrant a reduction
of a jury verdict under § 26.1-41-08(1)(b).       In other words, the majority
omits the word “become” from its reading of § 26.1-41-08(1)(b): the
majority reads § 26.1-41-08(1)(b) as exempting economic loss to the extent
of all basic no-fault benefits paid or payable.


        Yet § 26.1-41-08(1)(b) exempts “[e]conomic loss to the extent of all
basic no-fault benefits paid or to become payable . . . .”      N.D. Cent. Code
Ann. § 26.1-41-08(1)(b) (1995) (emphasis added).      Thus, § 26.1-41-08(1)(b)
exempts liability not only for economic       losses that are currently due and
payable, but also for future losses that are less than certain to become
payable.


        As the majority notes, “benefits are payable only after the no-fault
insurer receives ‘reasonable proof of the fact and the amount of loss . .
. .’”       Maj. Op. at 5 (ellipses in original) (quoting N.D. Cent. Code Ann.
§ 26.1-41-09(2) (1995)).      The majority, however, does not explain why the
jury’s finding that Johnson has suffered a $30,000 economic loss in the
form of future medical expenses is not “reasonable proof of the fact and
the amount of loss,” id. (quotations and citations omitted), or why the
jury’s finding is otherwise insufficient to hold that Johnson’s injuries
will become payable under the no-fault system.        See Maj. Op. at 7 n.2.5


        5
      Instead, the majority engages in de novo factfinding to
conclude that Johnson’s injuries are not sufficiently certain to
warrant a reduction of her jury award.     Although “both parties
argued this issue as a matter of law,” the majority concludes that
“[t]he facts . . . play a significant role in the decision because
the court must determine whether the future damages, in this case
medical expenses, constitute an ‘economic loss’ under the secured
person exemption.”    Maj. Op. at 6.    Accordingly, the majority
“requested and received the deposition testimony of three doctors
who testified on behalf of Johnson and one doctor who testified on
behalf of Methorst.” Id. After a de novo review, the majority
makes the finding that “[n]o certainty as to treatment exists . .
. .” Id. at 7.

        The majority’s de novo factfinding upon appellate review is

                                       -12-
     The majority’s holding also undermines the purposes behind the No-
Fault Act.   The “key aspect” of North Dakota’s no-fault insurance scheme
is “to transfer victim compensation from fault-based common law tort
recovery to a compulsory no-fault insurance fund.”   Reisenauer v. Schaefer,
515 N.W.2d 152, 155 (N.D. 1994).     By allowing Johnson to recover in a
fault-based tort action, the majority has prevented this transfer of
compensation.




procedurally troubling, if not procedurally erroneous. Reviewing
the depositions of expert witnesses to determine the certainty of
treatment is an endeavor best left to the trial court.          See
Reisenauer v. Schaefer, 515 N.W.2d 152, 156 (N.D. 1994) (holding
that, though tort victim had not met his burden of presenting
evidence pertaining to his past economic losses, “justice best is
served by reversing and remanding with direction to the trial court
to determine the amount of basic no-fault benefits paid or
payable”).

                                   -13-
     Furthermore, the majority’s holding creates a substantial risk of
double recovery by allowing Johnson to recover in her tort action.6   No
provision of Chapter 26.1-41 of the No-Fault Act




     6
      Soon after the enactment of N.D. Cent. Code Ch. 26-41--the
predecessor to N.D. Cent. Code Ann. Ch. 26.1-41--Thomas O. Smith,
the Special Attorney General to the North Dakota Insurance
Department, wrote a law review article explaining the operation and
purposes of the No-Fault Act.      He stressed that courts should
reduce jury awards to prevent double recovery. Specifically, he
wrote:

     [A] ‘secured person’ is exempt from liability to pay
     damages for ‘economic loss’ to the extent that an injured
     person has been paid or will be paid basic no-fault
     benefits. This means that recovery cannot be had from a
     ‘secured person’ in a tort action for any ‘economic loss’
     which has been recovered or will be recovered in the
     future from an insurance company. This eliminates the
     possibility of an injured person recovering basic no-
     fault benefits for his ‘economic loss’ from his insurance
     company and also recovering the same element of ‘economic
     loss’ from the secured person’s insurance company under
     the motor vehicle liability insurance coverage. Thus, a
     court in order to comply with the spirit of the law
     should consider in any suit for damages evidence of basic
     no-fault benefits which have been paid or will be paid in
     the future to an injured person(s) and reduce any
     judgment rendered in his favor by that amount.

Thomas O. Smith, “North Dakota Auto Accident Reparations Act”--
North Dakota’s No-Fault Insurance Law, 52 N.D. L. Rev. 147, 158
(1975) (construing N.D. Cent. Code Ch. 26-41 (Interim Supp. 1975))
(notes omitted).

                                 -14-
expressly prevents Johnson from seeking recovery from the no-fault fund for
the   same   medical   expenses   that   she    has   already   recovered   in   tort.
Therefore, although she has recovered from Methorst, Johnson is still free
to seek recovery from the no-fault system, and in doing so, she may be
twice compensated for a single injury.
      For the foregoing reasons, I would hold that Johnson’s recovery of
future medical damages in her action against Methorst makes it sufficiently
likely that her economic loss will become payable under the no-fault
system.   I would therefore affirm the decision of the magistrate judge to
reduce the jury award.


      A true copy.


             Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -15-
