FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 13, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 84
Lee Zander, individually and as Executor
of the Estate of Taylor Goven, deceased;
and Lee Zander on behalf of the heirs and
next of kin of Taylor Goven, deceased;
and Jason Renschler, individually and as
Executor of the Estate of Abby Renschler,
deceased; and Jason Renschler and Sandra
Renschler on behalf of the heirs and next
of kin of Abby Renschler, deceased; and
Shayna Monson, Plaintiffs and Appellees
v.
Jordan Morsette, Defendant and Appellant
No. 20200211
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice.
Chad C. Nodland (argued), Bismarck, North Dakota, for plaintiff and appellee
Lee Zander, individually and as Executor of the Estate of Taylor Goven,
deceased, and Lee Zander on behalf of the heirs and next of kin of Taylor
Goven, deceased.
Thomas A. Dickson (appeared), Bismarck, North Dakota, for plaintiffs and
appellees Jason Renschler, individually and as Executor of the Estate of Abby
Renschler, deceased, and Jason Renschler and Sandra Renschler on behalf of
the heirs and next of kin of Abby Renschler, deceased.
1
Jeffrey S. Weikum (argued), Bismarck, North Dakota, for plaintiff and appellee
Shayna Monson.
Kay N. Hunt (argued), Minneapolis, Minnesota, and Sean F. Marrin
(appeared), Bemidji, Minnesota, for defendant and appellant.
Steven J. Leibel and Tyler J. Siewert, Bismarck, North Dakota, for amicus
curiae Mothers Against Drunk Driving in support of plaintiffs and appellees.
2
Zander v. Morsette
No. 20200211
Tufte, Justice.
[¶1] Jordan Morsette appeals from an amended judgment ordering him to
pay $242 million in compensatory damages and $885 million in punitive
damages to Shayna Monson; Lee Zander, individually and on behalf of Taylor
Goven, deceased; and Jason Renschler, individually and on behalf of Abby
Renschler, deceased (Plaintiffs). Morsette argues the district court erred in
admitting evidence of his intoxication, erred in its instructions to the jury, and
erred by granting the Plaintiffs’ motion to amend their complaint to add a
punitive damages claim. Morsette also argues the jury’s verdict was excessive.
We reverse the amended judgment and remand for a new trial.
I
[¶2] In June 2015, while driving on the wrong side of the Bismarck
Expressway, Morsette’s vehicle collided head on with Monson’s vehicle.
Monson suffered serious bodily injuries, and Goven and Renschler died at the
crash scene. Morsette’s blood alcohol concentration was 0.295 percent at the
time of the collision.
[¶3] The Plaintiffs sued Morsette for negligence, seeking damages for their
injuries. Morsette answered and admitted liability for the accident. The
Plaintiffs moved to amend their complaint to add a punitive damages claim,
alleging Morsette’s conduct was oppressive and malicious. The district court
granted the Plaintiffs’ motion, finding they “met the threshold of malice
necessary to amend the complaint to request punitive damages.”
[¶4] Before trial, Morsette moved to exclude references at trial to his
intoxication at the time of the accident. The district court denied Morsette’s
motion, concluding Morsette’s intoxication was relevant to the Plaintiffs’
compensatory damages. The court bifurcated the trial for separate proceedings
on compensatory and punitive damages. The jury awarded $36 million in
compensatory damages, more than $2 million in interest on past damages, and
$295 million in punitive damages to each of the Goven and Renschler plaintiffs.
1
The jury awarded $170 million to Monson in compensatory damages, more
than $5.2 million in interest on past damages, and $295 million in punitive
damages.
[¶5] Morsette moved for a reduction of damages and a new trial. He argued
the district court erred in the compensatory damages phase of trial by
admitting evidence of his intoxication, the court erred in its jury instructions,
the jury’s verdict was excessive, and the Plaintiffs’ references to his absence at
trial should have been excluded. After a hearing, the court reduced the punitive
damages awarded to the Goven and Renschler plaintiffs to $72 million each as
required by N.D.C.C. § 32-03.2-11(4). The court denied Morsette’s motion for a
new trial, concluding his intoxication was relevant at trial regarding the
Plaintiffs’ damages.
II
[¶6] Morsette argues the district court abused its discretion by denying his
motion for a new trial. He asserts the court erred in admitting evidence of his
intoxication in the compensatory damages phase of trial and claims his
intoxication was not relevant to the Plaintiffs’ damages after he admitted
liability. Morsette also argues the court erred in its jury instructions and the
jury’s verdict was excessive.
[¶7] We review a district court’s decision on a motion for a new trial under
the abuse of discretion standard. Rentz v. BNSF Ry. Co., 2020 ND 254, ¶ 12,
952 N.W.2d 47. A court abuses its discretion when it acts in an arbitrary,
unconscionable, or unreasonable manner, when it misinterprets or misapplies
the law, or when its decision is not the product of a rational mental process
leading to a reasoned determination.
Id.
A
[¶8] Morsette claims the district court erred in admitting evidence of his
intoxication. He argues his intoxication was not relevant to the Plaintiffs’
compensatory damages after he admitted liability.
2
[¶9] A district court has broad discretion in admitting or excluding evidence
at trial. Flynn v. Hurley Enterprises, Inc., 2015 ND 58, ¶ 5,
860 N.W.2d 450.
Generally, relevant evidence is admissible, and irrelevant evidence is not
admissible. N.D.R.Ev. 402. “Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.” N.D.R.Ev. 401. Under
N.D.R.Ev. 403, the court may exclude relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice or misleading the
jury. Even if the court errs at trial, N.D.R.Civ.P. 61 states:
Unless justice requires otherwise, no error in admitting or
excluding evidence, or any other error by the court or a party, is
ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.
See also N.D.R.Ev. 103(a) (stating “[a] party may claim error in a ruling to
admit or exclude evidence only if the error affects a substantial right of the
party”).
[¶10] The Plaintiffs sued Morsette for negligence, claiming he failed to follow
the law and rules of driving, failed to properly observe the roadway, failed to
maintain proper control of his vehicle, failed to maintain the appropriate lane
of travel, and operated a vehicle while heavily intoxicated. The Plaintiffs
alleged Morsette’s negligence caused their damages. In his answer, Morsette
admitted that he was negligent and that his negligence proximately and
directly caused the Plaintiffs’ damages. Before trial, Morsette admitted
liability for the “violent, high speed head-on collision” with Monson’s vehicle.
At trial, the district court stated to the jury:
Mr. Morsette has admitted fault in causing the accident, so the
only issue for you to decide are whether the accident caused the
alleged injury or injuries or losses and, if so, what is the proper
amount of compensation, if any, that should be paid for the alleged
injury or injuries or losses.
3
[¶11] The Plaintiffs sought damages for their injuries under N.D.C.C. § 32-
03.2-04, relating to economic and noneconomic damages for wrongful death or
injury to person:
In any civil action for damages for wrongful death or injury
to a person and whether arising out of breach of contract or tort,
damages may be awarded by the trier of fact as follows:
1. Compensation for economic damages, which are damages
arising from medical expenses and medical care,
rehabilitation services, custodial care, loss of earnings
and earning capacity, loss of income or support, burial
costs, cost of substitute domestic services, loss of
employment or business or employment opportunities
and other monetary losses.
2. Compensation for noneconomic damages, which are
damages arising from pain, suffering, inconvenience,
physical impairment, disfigurement, mental anguish,
emotional distress, fear of injury, loss or illness, loss of
society and companionship, loss of consortium, injury to
reputation, humiliation, and other nonpecuniary damage.
In a wrongful death action, “the jury shall give such damages as it finds
proportionate to the injury resulting from the death to the persons entitled to
the recovery.” N.D.C.C. § 32-21-02.
[¶12] The Plaintiffs claim the method by which they were injured, or by which
their child died, was relevant to the nature and extent of noneconomic damages
they suffered. The Plaintiffs assert Morsette’s intoxication directly impacted
their noneconomic damages because they suffered unique pain and mental
anguish stemming from the fact that Morsette was intoxicated while driving.
[¶13] This Court has not addressed whether a defendant’s intoxication is
relevant to a plaintiff’s damages when the defendant admits liability. Other
courts have held evidence of intoxication is irrelevant and prejudicial when a
defendant admits liability for an accident. GEICO Gen. Ins. Co. v. Dixon, 209
So. 3d 77, 81 (Fla. Dist. Ct. App. 2017) (“In an automobile negligence case,
when the defendant admits liability regarding the cause of the accident,
evidence of the defendant’s sobriety is irrelevant and prejudicial.”); Swanson
4
v. Robles, 128 So. 3d 915, 917 (Fla. Dist. Ct. App. 2013); Parker v. Artery,
889
P.2d 520, 524 (Wyo. 1995); Puent v. Dickens,
427 S.E.2d 340, 343 (Va. 1993)
(stating evidence of a defendant’s intoxication is not relevant to the
determination of compensatory damages and should not be admitted when that
is the only issue before the jury); Anderson v. Amundson,
354 N.W.2d 895, 899
(Minn. Ct. App. 1984) (stating intoxication is irrelevant on the question of
compensatory damages when liability has been admitted); Gelinas v. Mackey,
465 A.2d 498, 500 (N.H. 1983); Obercon v. Glebatis,
454 N.Y.S.2d 46, 47 (N.Y.
App. Div. 1982); Eubank v. Spencer,
203 Va. 923, 927,
128 S.E.2d 299, 302 (Va.
1962).
[¶14] Arizona and Illinois have wrongful death statutes similar to N.D.C.C.
§ 32-21-02, specifically the language stating that the jury shall award damages
for injuries “resulting from the death.” See
Ariz. Rev. Stat. Ann. § 12-613; 740
Ill. Comp. Stat. Ann. 180/2. In Girouard v. Skyline Steel, Inc.,
158 P.3d 255,
260-61 (Ariz. Ct. App. 2007), the court held that under A.R.S. § 12-613,
“compensation in a wrongful death action is limited to ‘injury resulting from
the death.’” “[A] survivor may not recover for mental anguish resulting from
the negligent acts of the defendant prior to the decedent’s death, and such
evidence is not relevant to the issue of damages.” Girouard, at 261 (citing
Mullen v. Posada Del Sol Health Care Center,
819 P.2d 985, 986 (Ariz. Ct. App.
1991)).
[¶15] In Hammond v. Sys. Transp., Inc.,
942 F. Supp. 2d 867, 870 (C.D. Ill.
2013), a negligent truck driver collided with another vehicle, killing two
individuals. Similar to Morsette, the driver admitted liability but disputed the
extent of damages.
Id. In construing Illinois’ wrongful death act, the court
rejected the plaintiffs’ argument that evidence of the accident’s circumstances,
including the defendant’s negligence, was relevant:
[T]he fact that the [plaintiffs] died suddenly in a serious vehicle
accident may make it more probable that their next of kin
experienced compensable grief and sorrow from the death. Thus,
evidence concerning the circumstances and manner of the
decedents’ deaths is relevant to the issue of damages, and will not
be excluded under [Fed.R.Evid.] 402. This is not to say that all
5
evidence Plaintiff wishes to bring relating to the manner of death
will be admissible. Rather, the Court simply concludes that it
cannot exclude all evidence of the manner of death or the events
surrounding the accident under Rule 402. The admissibility of
particular pieces of evidence will be resolved as it arises. For
example, under [Fed.R.Evid.] 403, the Court may exclude evidence
of the circumstances of the decedents’ deaths that is more
prejudicial than probative.
However, evidence of Defendant Austin’s negligence, such as
the allegation that he violated rules limiting the hours he could
work before resting, which resulted in him falling asleep and
running a stop sign, is not relevant to Plaintiff’s claim. As
indicated in the above statutory analysis, the grief, sorrow, and
mental suffering is compensable only if it arises from the death,
not from the negligence that preceded the death. Plaintiff’s
argument that the children of the decedents experience increased
grief because they think about the possibility that if only
Defendant had abided by the applicable laws and rules, their
parents would not have died, . . . only confirms the understanding
that such emotional responses do not arise from the death and are
thus not compensable. Therefore, any evidence of Defendant’s
negligent acts or omissions leading up to the accident are
irrelevant and will be excluded at trial.
Hammond, at 876.
[¶16] Here, the Plaintiffs claim that Morsette’s negligence, specifically his
intoxication, was relevant to their damages. Lee and Cindy Zander testified
Morsette’s intoxication caused their attitudes and social behaviors toward
alcohol to change. They stated they no longer drink socially and have a difficult
time socializing with others if alcohol is involved. Cindy Zander testified she is
angry at Morsette because he never said he was sorry. Neither Monson nor the
Renschler plaintiffs testified they suffered damages as a result of Morsette’s
intoxication.
[¶17] Under N.D.C.C. § 32-21-02, damages are allowed for “injur[ies] resulting
from the death.” Thus, the Zander and Renschler Plaintiffs may recover
damages for the pain, suffering, mental anguish, and emotional distress
6
resulting from the deaths of Taylor Goven and Abby Renschler. But any
damages resulting from Morsette’s negligence preceding the deaths, including
his intoxication, are not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-
04. As a result, evidence of Morsette’s intoxication is not relevant under
N.D.R.Ev. 402. Because the Zander and Renschler Plaintiffs are precluded
from recovering damages resulting from Morsette’s intoxication, we conclude
the district court abused its discretion in admitting evidence of Morsette’s
intoxication.
B
[¶18] Morsette contends the district court erred in failing to give a requested
instruction to the jury. He argues this error, plus the court’s admission of
evidence of his intoxication, resulted in an excessive jury verdict.
[¶19] Jury instructions should fairly inform the jury of the applicable law and
must not mislead or confuse the jury. Rittenour v. Gibson, 2003 ND 14, ¶ 15,
656 N.W.2d 691. Under N.D.R.Civ.P. 51(c)(1), “[a] party who objects to a
proposed instruction or the failure to give an instruction must do so on the
record, stating distinctly the matter objected to and the grounds of the
objection.” If a party fails to object, this Court “may consider a plain error in
the instructions affecting substantial rights.” N.D.R.Civ.P. 51(d)(2); see also
Travelers Cas. Ins. Co. of Am. v. Williams Co. Constr., Inc.,
2014 ND 160, ¶ 12,
851 N.W.2d 164.
[¶20] A new trial, or a reduction of damages, may be granted if “excessive
damages appear[] to have been awarded under the influence of passion or
prejudice.” N.D.R.Civ.P. 59(b)(5); Blessum v. Shelver,
1997 ND 152, ¶ 37,
567
N.W.2d 844. Passion is motivation by emotions, and prejudice means formation
of an opinion without due knowledge. Wanner v. Getter Trucking, Inc.,
466
N.W.2d 833, 837 (N.D. 1991). “It is presumed that a damage verdict is proper,
and this presumption is overcome only when the jury’s verdict is so excessive
that it shocks the conscience of the court.” Blessum, at ¶ 37.
[¶21] The district court failed to give North Dakota Pattern Jury Instruction
C-70.65, which precludes the jury from awarding damages to punish the
7
defendant in the compensatory damages phase of trial. The instruction states:
“You may not include in any award of damages to the Plaintiff any exemplary
damages that you might add to punish the Defendant or to make an example
of the Defendant for the public good or to prevent other wrongdoing. Those
damages would be punitive rather than compensatory.”
[¶22] Morsette included the instruction in his requested jury instructions
submitted the day before trial. However, when given the opportunity, he did
not object to the district court’s final instructions which omitted his requested
instruction. The district court stated its omission of Morsette’s requested
instruction was unintentional.
[¶23] In their closing arguments in the compensatory damages phase of trial,
the Plaintiffs stated that Morsette chose not to attend trial and has not
apologized or shown remorse for his actions. The Plaintiffs stated:
It’s about time [Morsette] stood up and acted like a man and not a
coward that he was on June 27th of 2015, and the coward he is
today. . . . He won’t listen to the Judge, he won’t listen to the
lawyers, he won’t listen to the cops, let’s see if he listens to you.
[¶24] Without Morsette’s requested jury instruction, the jury could have
inferred that Morsette should be punished on the basis of the Plaintiffs’ closing
arguments. Monson requested a minimum of $65 million in compensatory
damages, and the Goven and Renschler plaintiffs each requested $18 million.
The jury awarded $36 million each to the Goven and Renschler plaintiffs, and
$170 million to Monson. In denying Morsette’s motion for a new trial, the
district court stated, “Had the jury already award[ed] such exemplary damages
improperly in the compensatory phase, they would not have awarded punitive
damages [in the punitive damages phase of trial].” We disagree.
[¶25] “Damages in all cases must be reasonable.” N.D.C.C. § 32-03-37. The
purpose of compensatory damages is to compensate a plaintiff for his or her
injuries, not to punish the defendant for his or her wrongdoing. Despite the
inherently emotional nature of the claim for mental anguish damages, on this
8
record we can only conclude the jury was motivated by emotion and enhanced
its compensatory damages verdict to punish Morsette.
[¶26] After reviewing the entire record, we cannot conclude the district court’s
errors were harmless. The admission of the irrelevant evidence of Morsette’s
intoxication and the failure to instruct the jury they could not award punitive
damages in the compensatory damages phase of trial were prejudicial errors
that affected Morsette’s substantial rights. We reverse and remand for a new
trial on compensatory damages.
III
[¶27] Morsette asserts the district court erred in allowing the Plaintiffs to
amend their complaint adding a claim for punitive damages. Morsette argues
there was insufficient evidence supporting a punitive damages claim.
[¶28] “A district court’s decision on a motion to amend a complaint will not be
reversed on appeal unless the court abuses its discretion.” Gaede v. Bertsch,
2017 ND 69, ¶ 21,
891 N.W.2d 760.
[¶29] The Plaintiffs moved to add a punitive damages claim against Morsette
under N.D.C.C. § 32-03.2-11(1):1
In any action for the breach of an obligation not arising from
contract, when the defendant has been guilty by clear and
convincing evidence of oppression, fraud, or actual malice, the
court or jury, in addition to the actual damages, may give damages
for the sake of example and by way of punishing the defendant.
Upon commencement of the action, the complaint may not seek
exemplary damages. After filing the suit, a party may make a
motion to amend the pleadings to claim exemplary damages. The
motion must allege an applicable legal basis for awarding
1Under N.D.C.C. § 32-03.2-11(9), punitive damages may be awarded against
an intoxicated driver who causes an accident resulting in bodily injury if
certain conditions are satisfied. The parties acknowledge subsection 9 does not
apply in this case.
9
exemplary damages and must be accompanied by one or more
affidavits or deposition testimony showing the factual basis for the
claim. The party opposing the motion may respond with affidavit
or deposition testimony. If the court finds, after considering all
submitted evidence, that there is sufficient evidence to support a
finding by the trier of fact that a preponderance of the evidence
proves oppression, fraud, or actual malice, the court shall grant
the moving party permission to amend the pleadings to claim
exemplary damages.
[¶30] The Plaintiffs alleged Morsette’s conduct was malicious and oppressive.
They claimed his guilty plea to criminal vehicular homicide established his
malicious and oppressive conduct. The Plaintiffs argued Morsette intended to
drink himself to a level of intoxication over three times the legal limit and drive
on the wrong side of the road. The district court allowed the claim, finding the
Plaintiffs “met the threshold of malice necessary to amend the complaint.” The
court found “if the alleged conduct is proven by the plaintiff, [Morsette] was
reckless.”
[¶31] “Actual malice is the actual state or condition of the mind of the person
who did the act.” Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 754 (N.D. 1989).
“Actual malice is malice in fact, in which there is actually present an improper
motive implying the purpose and desire to injure. [A]ctual malice [means]
actual spite and ill will toward plaintiff.” Neidhardt v. Siverts,
103 N.W.2d 97,
102 (N.D. 1960). “Actual malice” is defined as “an intent with ill will or
wrongful motive to harass, annoy, or injure another person.” McHugh v.
Jacobs,
450 F. Supp. 2d 1019, 1022 (D.N.D. 2006) (citing North Dakota Pattern
Jury Instruction C-72.16).
[¶32] The district court misapplied the law in finding the Plaintiffs met the
necessary threshold of malice to add a claim for punitive damages. The court
found that “if the alleged conduct is proven by the plaintiff, [Morsette] was
reckless.” The law requires a finding of more than reckless conduct; it requires
sufficient evidence to support a finding that a preponderance of the evidence
demonstrates conduct with a state of mind evincing an intent to harm or injure
another person. N.D.C.C. § 32-03.2-11(1). The Plaintiffs argued Morsette
[acted maliciously because he] intended to drink and drive and as a result he
10
killed Goven and Renschler and seriously injured Monson. However,
“[i]ntentional or willful conduct is not synonymous with oppressive, fraudulent
or malicious conduct.” Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 643
(N.D. 1984). There was no evidence indicating that Morsette acted with ill will
or wrongful motive and intended to injure Monson, Goven, Renschler, or any
other person. Although Morsette’s conduct while intoxicated can be
characterized as grossly negligent or extremely reckless, there are no special
circumstances, such as an intent to injure or personal ill will toward the
Plaintiffs, to support a finding of actual malice.
[¶33] We conclude the court abused its discretion by allowing the Plaintiffs’
claim for punitive damages against Morsette.
IV
[¶34] The amended judgment is reversed and remanded for a new trial on the
Plaintiffs’ compensatory damages.
[¶35] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
11
