                     This opinion will be unpublished and
                     may not be cited except as provided by
                     Minn. Stat. § 480A.08, subd. 3 (2014).

                          STATE OF MINNESOTA
                          IN COURT OF APPEALS
                                A15-0038

                           James M. Johnson, et al.,
                                 Appellants,

                                      vs.

                     Princeton Public Utilities Commission,
                       defendant and third party plaintiff,
                                  Respondent,

                                      vs.

                               Hydrocon, Inc.,
                            Third Party Defendant.

                            Filed January 4, 2016
               Affirmed in part, reversed in part, and remanded
                             Cleary, Chief Judge

                        Mille Lacs County District Court
                            File No. 48-CV-11-2174


James E. Lindell, Grim Daniel Howland, Lindell & Lavoie, LLP, Minneapolis,
Minnesota (for appellants)

Larry D. Espel, Kathryn N. Hibbard, Katherine M. Swenson, Greene Espel PLLP,
Minneapolis, Minnesota (for respondent)
       Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Randall, Judge.

                         UNPUBLISHED OPINION

CLEARY, Chief Judge

       In this appeal from a judgment entered following a jury trial of appellants James

Johnson (Johnson) and Sherri Johnson’s negligence claims arising out of an accident at a

construction site, appellants assert that the district court erred by (1) denying their motion

for judgment as a matter of law on liability; (2) denying their motion for a new trial on

damages; (3) granting remittitur of the jury award; and (4) granting respondent Princeton

Public Utilities Commission’s (the PUC) motion for a collateral-source offset. The PUC

cross-appeals, asserting that the district court erred by ruling that appellants’ negligence

claims were not barred by workers’ compensation election of remedies. We affirm in

part, reverse in part, and remand for entry of judgment for appellants in the amount of

$240,000.

                                          FACTS

       Appellant James Johnson was employed as a construction worker by third-party

defendant Hydrocon Inc. during the time relevant to this litigation. Hydrocon is a sewer

and water contractor. On August 26, 2009, the PUC and Hydrocon entered a contract

under which Hydrocon was to perform construction work on the water main serving an

ice arena in Princeton, Minnesota. The PUC agreed to secure an electric utility pole so


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.


                                              2
that it would not fall while Hydrocon dug a ditch nearby. On the morning of August 31,

2009, employees of the PUC arrived at the construction site in order to secure the pole.

       The PUC employees used a digger truck to secure the utility pole and

disconnected the utility wires from the pole so it would be out of service during the water

main work. Hydrocon was not involved in securing the pole. After multiple employees

of the PUC secured the pole, one employee, Thomas Otto, remained at the site all day to

supervise the pole.

       Johnson operated the compacting machine, a ride-on vehicle that packs loose soil.

When the work near the pole was complete, Johnson informed Otto that Hydrocon

employees were done working near the pole, at which time Otto released the pole from

the digger truck that was securing it. Shortly after Otto drove the digger truck away from

the pole, it fell onto the roof of the compacting machine that Johnson was driving.

       On February 15, 2011, Johnson reached a settlement regarding this incident with

Hydrocon’s workers’ compensation insurance providers.            On September 30, 2011,

Johnson and his wife, appellant Sherri Johnson, filed a complaint against the PUC. The

PUC filed a third-party complaint against Hydrocon. After a settlement between the PUC

and Hydrocon, the Johnsons and PUC went to trial.

       After trial, the jury returned a special-verdict form that contained three sets of two

questions regarding the parties’ negligence. These questions asked (1) if the PUC was

negligent and (2) whether the PUC’s negligence was a direct cause of Johnson’s injuries,

(3) if Johnson was negligent and (4) whether Johnson’s negligence was a direct cause of

his injuries, (5) if Hydrocon was negligent and (6) whether Hydrocon’s negligence was a


                                             3
direct cause of Johnson’s injuries. The instructions stated that if the jury answered “yes”

to two or more of questions two, four, or six, meaning that more than one of the PUC,

Johnson, or Hydrocon had been negligent in a way that directly caused Johnson’s

injuries, only then should they answer question seven regarding apportionment of fault.

As to the PUC, the jury found it had been negligent and the negligence was a direct cause

of the injury. As to Johnson, the jury found he had been negligent but the negligence was

not a direct cause of the injury. As to Hydrocon, the jury found it was not negligent.

Despite finding only the PUC’s negligence directly caused the injury, the jury went on to

answer question seven, apportioning 70% of fault to the PUC and 30% to Johnson. The

jury valued damages at $240,000. Despite the inconsistent verdict, the judge dismissed

the jury.

       On January 17, 2014, the district court ordered a new trial based on the jury’s

inconsistent special-verdict answers. Appellants objected to this decision. On May 13,

the district court offered appellants a remittitur, allowing them “to choose between entry

of judgment for seventy percent of the original jury verdict . . . or a new trial.”

Appellants did not reject remittitur.   On July 14, the court entered a judgment for

appellants in the amount of $134,085.

       Appellants and respondent both made post-trial motions. Appellants argued for

judgment as a matter of law (JMOL) that the PUC was the only party causally negligent

in the accident for JMOL with respect to damages and, in the alternative, for a new trial

on damages. Appellants also moved to vacate the district court’s ruling on collateral-




                                            4
source offsets. Respondent sought JMOL as to its liability and filed a motion for fees and

costs. All motions were denied. This appeal followed.

                                     DECISION

Common enterprise

       We review a district court’s denial of a motion for JMOL de novo. Bahr v. Boise

Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009). However, “we view the evidence in

the light most favorable to the prevailing party.” Id.

              [JMOL] should be granted: only in those unequivocal cases
              where (1) in the light of the evidence as a whole, it would
              clearly be the duty of the [district] court to set aside a
              contrary verdict as being manifestly against the entire
              evidence, or where (2) it would be contrary to the law
              applicable to the case.

Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816

(Minn. 2006) (quotation omitted).

       Respondent appeals the district court’s denial of its motion for JMOL. It argues

that the PUC and Hydrocon were engaged in a common enterprise and therefore,

appellants’ negligence claims fail as a matter of law. When an employer and a third party

are working in “furtherance of a common enterprise,” an injured employee must choose

between receiving workers’ compensation benefits through the employer or pursuing a

common-law negligence action against the third party. Minn. Stat. § 176.061, subds. 1, 4

(2014). A common enterprise exists between the employer and the third party where “the

masters have joined forces and in effect have put the servants into a common pool.”

Gleason v. Geary, 214 Minn. 499, 511, 8 N.W.2d 808, 814 (1943). This is the case



                                             5
where the following factors are satisfied: “(1) [t]he employers must be engaged on the

same project; (2) [t]he employees must be working together (common activity); and

(3) [i]n such fashion that they are subject to the same or similar hazards.” McCourtie v.

U.S. Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958). An employee’s

recovery on a workers’ compensation claim precludes a tort claim based on the same

incident against a third party engaged in a common enterprise with the employer.

O’Malley v. Ulland Bros., 549 N.W.2d 889, 893 (Minn. 1996).

       The district court determined that the first McCourtie factor was satisfied because

the PUC employees’ sole purpose in being on site that day was to secure the utility pole

to allow Hydrocon employees to do their work on the water main.                However, it

determined that the second and third factors were not satisfied and denied respondent’s

motion for JMOL.

       Respondent argues that because appellants/cross-respondents did not file a notice

of related appeal disputing the district court’s finding that the first McCourtie factor was

satisfied, this issue is waived. Because the second and third McCourtie factors are not

satisfied, we need not reach the issue of whether the first factor was preserved on appeal.

       The second factor is whether the employees were engaged in a common activity.

Whether this factor is satisfied “is a question that focuses on the functions performed by

the employees, not on the goals of their employers.” LeDoux v. M.A. Mortenson Co., 835

N.W.2d 20, 22-23 (Minn. App. 2013) (citing Schleicher v. Lunda Constr. Co., 406

N.W.2d 311, 313 (Minn. 1987)). “To be common, the employees’ activities must not

merely overlap minimally, they must be interdependent.” Id. at 23 (quotation omitted).


                                             6
The LeDoux court held that “[w]orking in the same area at the same time does not alone

establish an interdependent common activity since the activities were apparently distinct

and apparently could have been performed at different times.” Id. The mere fact that

employees may be working toward a common goal is insufficient.           Schleicher, 406

N.W.2d at 313.

       At the construction site, the PUC and Hydrocon employees largely worked

independently of each other. There was no evidence that Hydrocon employees were

involved in securing the pole or that employees of the PUC were involved in digging the

water-main trench. Additionally, taking the facts in the light most favorable to the

judgment, when the pole fell, Otto had driven his truck away from where Johnson was

driving the compactor. Johnson was engaged in different work than employees of the

PUC with little coordination or communication, and when the accident occurred, there

were no employees of the PUC present in the immediate area. Otto—the only employee

of the PUC present at the worksite—and Johnson were not engaged in a common activity

at the time of the accident.

       The third factor is whether the employees were subject to the same or similar

workplace hazards. “The same or similar hazards requirement does not demand exposure

to identical hazards, only similar hazards.” Olson v. Lyrek, 582 N.W.2d 582, 584 (Minn.

App. 1998), review denied (Minn. Oct. 20, 1998). “In determining whether workers are

exposed to similar hazards, [courts] make a comparison of the general risks to which

workers are exposed as a result of the tasks being performed.” Id.




                                            7
       In Olson, a foreman was injured while laying pipe in a trench that was

simultaneously being excavated by a backhoe operator. Id. The operator negligently

drove the backhoe into the trench, landing on the foreman and injuring both workers. Id.

Despite the fact that the workers were injured due to the same action, the court found that

the third McCourtie factor was not satisfied because “the general risks facing [the

backhoe operator] were fundamentally different from the risks facing [the foreman]

because they were performing separate tasks.” Id. The risks were not the same because

the foreman and operator “did not use the same equipment, nor did they work in the same

physical areas. [The foreman] was down in the trench and [the operator] was sitting in an

enclosed cab several feet above the trench.” Id.

       The facts in this case mirror Olson. Hydrocon employees had very different tasks

than the PUC employees. They used different equipment and worked in different spaces.

As the district court noted, the general risks facing Hydrocon employees were “trench

cave-ins” and other dangers associated with working in a trench, whereas the PUC

employees “were subject to the risk of electric shock from disconnecting and

reconnecting electrical service to the utility pole.” Respondent’s argument that this factor

is satisfied because employees of the PUC also faced the risk of a falling pole conflicts

with Olson. In that case, employees of the two companies were actually injured by the

same instrument, but the court stated “[t]he focus . . . is not on the instrument that caused

the injury.” Olson, 582 N.W.2d at 584. Instead the focus is on the general risks of the

tasks performed. Id. Under Olson, this third McCourtie factor is not satisfied where

there is only small overlap between the risks faced by the two groups of employees, even


                                             8
where that overlapping risk is what actually causes the harm. The district court correctly

concluded that the general risks were not common among Hydrocon and employees of

the PUC.

       Employees of the PUC and Hydrocon were not engaged in a common activity and

did not face similar hazards. The district court did not err in denying respondent’s

motion for JMOL on the issue of common enterprise.

New trial on damages

       Appellants appeal the district court’s decision denying a motion for a new trial on

damages. “We review a district court’s new trial decision under an abuse of discretion

standard.” Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 892 (Minn. 2010). An

appellate court “will not set aside a jury verdict on an appeal from a district court’s denial

of a motion for a new trial unless it is manifestly and palpably contrary to the evidence

viewed as a whole and in the light most favorable to the verdict.” Navarre v. S. Wash.

Cnty. Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted).

       First, appellants argue that the district court incorrectly permitted respondent to

cross-examine Johnson regarding a previous injury settlement. “The jury shall not be

informed of the existence of collateral sources or any future benefits which may or may

not be payable to the plaintiff.” Minn. Stat. § 548.251, subd. 5 (2014). However, such

evidence may be admitted “when a plaintiff, through either the use of misleading

statements or outright false statements, falsely conveys to the jury that he or she is

destitute or in dire financial straits.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d

42, 46 (Minn. 1997).


                                              9
       Appellants presented direct testimony that appellant was unable to sign up for

college courses because “[h]e doesn’t have the money.” On direct examination, Johnson

stated that he hoped to enroll in a college program but had been unable to. The court

found that “the general tenor of [Johnson’s] testimony suggested that finances had

prevented him” from enrolling in college, and that testimony presented by appellants

“painted an unnecessarily dire picture of the Johnson family’s financial condition.” The

evidence provides support for the conclusion that Johnson was conveying to the jury that

financial struggles resulting from the accident prevented him from mitigating damages by

pursuing a degree. The district court determined that appellants had opened the door to

collateral-source evidence through its direct evidence. This determination was not an

abuse of discretion.

       The district court also did not abuse its discretion by excluding evidence of a

settlement between the PUC and Hydrocon.             Evidence of accepting “valuable

consideration in compromising . . . a claim which was disputed as to either validity or

amount, is not admissible to prove liability.” Minn. R. Evid. 408. Appellants argue that

the claim settled between the PUC and Hydrocon was not disputed and thus rule 408 does

not apply. However, the liability release agreed to by the PUC and Hydrocon stated the

payment was made “to compromise a disputed and contested claim.” The decision to

exclude evidence of the settlement was not an abuse of discretion.

       Finally, appellant argues that the district court erred by not granting a new trial

based on the jury’s decision to award no damages for past medical expenses, future

bodily and mental harm, loss of future earning capacity, or loss of consortium.


                                           10
“Generally, a new trial on damages will be granted only where the verdict is so

inadequate or excessive that it could only have been rendered on account of passion or

prejudice.”   Rush v. Jostock, 710 N.W.2d 570, 577 (Minn. App. 2006) (quotation

omitted), review denied (Minn. May 24, 2006). “A trial court has the broadest possible

discretion to determine whether a new trial should be granted based on an inadequate

award of damages.” Id. This decision should not be reversed “absent a clear abuse of

that discretion and the existence of the most unusual circumstances.”        Pulkrabek v.

Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988) (quotation omitted), review denied

(Minn. May 4, 1988).

       As to past and future medical expenses, appellants argue that they were entitled to

damages as a matter of law because “there was no dispute regarding the past healthcare

expenses attributable to [Johnson’s] cervical surgery and treatment.” However, there was

evidence presented that Johnson had a preexisting cervical injury. In 2003, Johnson was

diagnosed with “degenerative disc disease of the cervical spine.” Respondent’s medical

expert testified that the 2009 worksite accident had aggravated this preexisting condition.

The district court held that the jury could have concluded that “the accident was merely a

minor factor that hastened an already inevitable surgery.” Under this understanding of

the evidence, the jury could reasonably find that the past healthcare expenses and the

future bodily and mental harm were not causally attributable to respondent’s actions but

rather to the preexisting injury.

       Respondent also presented evidence that Johnson’s loss of future earning capacity

was not attributable to the accident. Respondent’s medical expert testified that continued


                                            11
pain in Johnson’s neck was attributable to his preexisting condition, not the accident.

Taking the evidence in the light most favorable to the verdict, the jury could have

credited this testimony and concluded that any reduction in future earning capacity was

not attributable to respondent’s actions. Similarly, if the jury credited this testimony, it

could reasonably conclude that any loss of consortium to Sherri Johnson was not

attributable to respondent’s actions. Taken in the light most favorable to the verdict,

there is evidence to support the conclusion that all of the damages appellants challenge on

appeal were not attributable to the accident. The court did not abuse its discretion by

denying appellants’ motion for a new trial.

Collateral-source offset

       Appellants argue that the district court erred by hearing respondent’s untimely

motion and granting respondent a $48,450 collateral-source offset. Respondent argues

that the district court erred by not granting a greater collateral-source offset. When

reviewing a district court’s decision on collateral-source offsets, which is a mixed

question of law and fact, “we will correct erroneous applications of law, but accord the

[district] court discretion in its ultimate conclusions and review such conclusions under

an abuse of discretion standard.” Graff v. Robert M. Swendra Agency, Inc., 776 N.W.2d

744, 752 (Minn. App. 2009) (alteration in original) (quotation omitted) aff’d, 800 N.W.2d

112 (Minn. 2011).

       Minnesota law allows a party who has been found liable for injury or disability to

seek a reduction in the jury award for compensation that the plaintiff has already obtained

from collateral sources. Minn. Stat. § 548.251 (2014). The statute defines “collateral


                                              12
sources,” in relevant part, as “payments related to the injury or disability in question” to

the plaintiff up to the date of the verdict based on “a federal, state or local . . . Workers’

Compensation Act.” Id., subd. 1. If the court finds that the injured party has received

payment from collateral sources or that such sources are available to the injured party, it

must reduce the jury award by the collateral-source amount. Id., subd. 3(a). The purpose

of the statute is to prevent double recovery by the plaintiff. Heine v. Simon, 702 N.W.2d

752, 764 (Minn. 2005).

       Appellants argue that the district court erred by hearing and granting the PUC’s

motion for collateral-source offsets because the motion was untimely. Minnesota law

states that “when damages 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.”

Minn. Stat. § 548.251, subd. 2. “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 v. State Farm Mut. Auto. Ins. Co., 624 N.W.2d 789, 795-

96 (Minn. App. 2001).

       Here, respondent made its collateral-source motion on October 29, 2013, while the

entry of judgment did not occur until July 14, 2014. Under the statute, respondent did not

file its motion “within ten days of entry of the verdict,” but rather over eight months

before entry of the verdict. Respondent did not follow the collateral-source statute and

the district court abused its discretion by granting the untimely motion. Because it did

not make a timely motion, the PUC is not entitled to a collateral-source offset.


                                             13
Remittitur

       At the conclusion of trial, the jury gave conflicting answers on the special-verdict

form. The jury indicated in response to question four that Johnson’s negligence was not a

direct cause of his injury but, contrary to instructions, answered question seven,

apportioning Johnson 30% of the fault for the injury and the PUC 70% of the fault. After

failing to ask the jury to reconcile the responses before dismissing it, the trial court

offered appellants the choice to accept the court’s entry of a remittitur awarding

appellants 70% of the original verdict, or to reject the remittitur, in which case the court

would hold a new trial. Appellants argue that the district court should have entered a

verdict for the full amount of the jury award because, under the circumstances, the jury

should not have answered question seven.

       “A trial court has broad discretion to liberally construe an inconsistent verdict to

effect the intention of the jury and to harmonize answers if possible.” Hampton Bank v.

River City Yachts, Inc., 528 N.W.2d 880, 892 (Minn. App. 1995) (quotation omitted),

review denied (Minn. Apr. 27, 1995). However, “[a]ppellate courts also may direct that

one of the answers be changed as a matter of law.” Bogut v. Jannetta, 410 N.W.2d 451,

454 (Minn. App. 1987).

       In Daly v. McFarland, the supreme court reversed a district court’s decision not to

grant remittitur where the jury’s answers to the special-verdict form stated that the

plaintiff’s negligence had not directly caused the accident, but nonetheless apportioned

fault to the plaintiff. 812 N.W.2d 113, 118-19 (Minn. 2012). In that case, the jury had

been instructed to answer the apportionment-of-fault question regardless of how it


                                            14
answered the causation question. Id. at 126. The supreme court reasoned that, because

the jury’s answers conflicted on two questions that the court had instructed them to

answer, the district court abused its discretion by ignoring the jury’s answer to the

apportionment question and finding the plaintiff had no causal negligence. Id. at 126-27.

       In this case, the jury was instructed that it should only answer question seven

regarding apportionment of fault if it answered “yes” to two or more of questions two,

four, or six. Of these, it answered “yes” only to question two. Unlike in Daly, the district

court in this case did not need to reconcile two required jury findings that conflicted. The

jury was instructed not to answer question seven under these circumstances, and it should

not have done so. Because the jury’s answers on questions one through six meant that it

was not to answer question seven, any answer to that question has no legal effect. See

Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 28 (Minn.

1982) (stating that jury “instructions [become] the law of the case”). The district court

abused its discretion by reducing appellants’ damages based on this answer, which had no

effect as a matter of law. The remittitur must be reversed, and this case is remanded for

entry of judgment for the full amount of the jury verdict, $240,000.

       Affirmed in part, reversed in part, and remanded.




                                            15
