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Hewitt v. Felderman

Supreme Court of South Dakota

December 11, 2013

Peggy HEWITT, Plaintiff and Appellant,
Shelli Rae FELDERMAN, Defendant and Appellee.

Argued Sept. 30, 2013.

Page 259

[Copyrighted Material Omitted]

Page 260

Stephanie R. Amiotte, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, PC Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Peggy Hewitt appeals a jury verdict awarding no damages in a personal injury suit against Shelli Rae Felderman. Hewitt argues the evidence did not support the verdict, the court erred in denying a motion for directed verdict, and the court erred in denying attorney's fees and costs. Felderman challenges the court's denial of costs and disbursements and the admissibility of certain expert testimony offered at trial. We affirm.

Facts and Procedural History

[¶ 2.] Peggy Hewitt was involved in two separate rear-end collisions that were the subject of the trial court action below. Hewitt was in the front vehicle during both accidents. The first accident occurred in the morning hours of January 11, 2007. Hewitt was stopped at a stop sign off the Benson Road exit of I-229 in Sioux Falls when she was rear-ended by Dwight Berens. Berens admitted fault in the accident and is not a party to this appeal.

[¶ 3.] Following the first accident, Hewitt complained of pain and numbness in her head, neck, and left arm. She was diagnosed with spinal sprain and strain injuries. A chiropractor, a physical therapist, and other medical specialists treated Hewitt for loss of sensation, pain, headaches, and range of motion problems. Hewitt was receiving treatment on a regular basis at the time of the second accident.

[¶ 4.] The second accident occurred at approximately 7:30 a.m. on June 27, 2008.

Page 261

Hewitt's son, Micah Hewitt, was driving Hewitt's 2006 Grand Prix westbound in the passing lane on I-229 with Hewitt in the passenger seat. Near the 26th Street Bridge, a deer ran onto the interstate from a grassy area beside the road. Hewitt's son braked, but was unable to avoid a collision with the deer. While the Hewitt vehicle was slowing or stopped, it was struck on the passenger side of the rear bumper by a 2005 Ford Expedition driven by Shelli Rae Felderman.

[¶ 5.] Felderman was given a citation for following too closely and paid the fine without objection. Before and during trial, Felderman admitted to the uncontested citation, but maintained that she was not negligent in causing the accident. Hewitt filed suit against both Berens and Felderman for injuries sustained in the two accidents. The two lawsuits were combined in a single jury trial held December 10-14, 2012.

[¶ 6.] At the close of the case, Hewitt moved for a directed verdict against Felderman on the issue of negligence. The trial court denied the motion. The trial court noted that there were reasonable grounds for the jury to find that the sudden emergency doctrine excused any negligence on the part of Felderman.

[¶ 7.] The jury found Berens liable in the 2007 collision, and awarded Hewitt $60,000 against Berens for past and future medical expenses and pain and suffering arising from the first accident. The jury awarded no damages to Hewitt against Felderman for the 2008 collision. The jury's decision was rendered through special verdict. When asked " Was Shelli Felderman negligent in causing the June 27, 2008 collision?" the jury responded affirmatively. However, when asked " Was Shelli Felderman's negligence a legal cause of plaintiff's injuries or damages, if any?" the jury responded in the negative.

[¶ 8.] After trial, Hewitt filed a motion for a new trial on the issue of damages, arguing insufficiency of evidence to support the verdict and inadequate damages. Hewitt also filed a motion for attorney's fees and costs, arguing that Felderman's failure to admit negligence unnecessarily increased the time and cost associated with bringing the case to trial. The court denied these motions. Felderman moved as the prevailing party to recover specific costs and disbursements in the amount of $2,883.57. The court also denied this motion, finding that neither party prevailed.

[¶ 9.] The parties raise five issues in this appeal:

1. Whether the trial court abused its discretion by denying Hewitt's motion ...

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