Kiminski v. American Family Mutual Insurance Co.

505 N.W.2d 50, 1993 Minn. LEXIS 584, 1993 WL 326466

Opinion

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of American Family Mutual Automobile Insurance Company for further review of a specified portion of an unpublished decision of the court of appeals be, and the same is, granted for the purpose of reversing the procedural dismissal of the petitioner’s appeal from the judgment as it related to and included damages for loss of consortium. Concluding that the petitioner’s failure to object to the special verdict form, failure to request that the special verdict form be drafted in a particular fashion and the failure to timely file a post-trial motion constituted a “waiver” of entitlement to review, the court of appeals did not address the merits of the petitioner’s claims of fundamental error. We disagree.

While a timely post-trial motion would have provided the trial court with the opportunity to correct any claimed error, the petitioner is not foreclosed from raising that alleged error on appeal from the judgment. See Minn.R.Civ.App.P. 103.04. We therefore remand the matter to the court of appeals for its consideration of the merits of the issue raised by the petitioner.