Malchose v. Kalfell

2003 ND 75, 664 N.W.2d 508, 2003 N.D. LEXIS 85, 2003 WL 21538099
CourtNorth Dakota Supreme Court
DecidedMay 6, 2003
Docket20020290
StatusPublished
Cited by5 cases

This text of 2003 ND 75 (Malchose v. Kalfell) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malchose v. Kalfell, 2003 ND 75, 664 N.W.2d 508, 2003 N.D. LEXIS 85, 2003 WL 21538099 (N.D. 2003).

Opinions

NEUMANN, Justice.

[¶ 1] The Kalfells appeal from the trial court’s judgment finding them liable in a negligence action arising out of an automobile accident. We affirm.

[¶ 2] On February 13, 2000, Eric Kal-fell and Kelly Malchose were involved in a motor vehicle accident. At the time of the accident, Eric Kalfell was driving a 1992 Pontiac Bonneville titled in the names of his parents, Lance and Lisa Kalfell. Mal-chose sued the Kalfells seeking to recover damages against Eric Kalfell for negligence, and against Lance and Lisa Kalfell on theories of family car doctrine, negligent entrustment, and strict liability for basic no-fault benefits under N.D.C.C. § 26.1-^41-02(5). After a bench trial, the trial court found Eric Kalfell at fault for negligence, Lance and Lisa Kalfell liable under both the family car doctrine and strict liability claims, and it awarded Kelly Malchose damages. The Kalfells appeal.

[¶ 3] The Kalfells argue the trial court erred (1) in improperly admitting Plaintiffs Exhibit 7, a Worker’s Compensation Bureau summary of medical bills; (2) in determining Lance and Lisa Kalfell were liable under the family car doctrine because Eric Kalfell was an adult child living away from home, Eric was the owner of the vehicle involved in the accident, and the car was not being used for family business; (3) in awarding damages for wage loss, tip income, delivery income, vehicle damage and non-economic damages; and (4) in finding Lance and Lisa Kalfell were owners of the car and therefore liable under North Dakota’s Auto Accident Reparations Act.

I

[¶ 4] The Kalfells argue the trial court erred in admitting Malchose’s Exhibit 7 into evidence over their objection. Mal-chose offered Exhibit 7 as evidence of the amount of medical damages he sustained. The Kalfells argue because the summary was not certified by the Bureau and is not [511]*511self-authenticating, it should not have been admitted.

A

[¶ 5] We apply an abuse of discretion standard when reviewing whether a trial court should have excluded evidence for lack of authentication. State v. Haugen, 392 N.W.2d 799, 802 (N.D.1986). The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. N.D.R.Ev. 901(a). “If the trial court is reasonably satisfied that the item offered is what it is purported to be and that the condition of the item is substantially unchanged, it is properly admissible in evidence.” State v. Hartsoch, 329 N.W.2d 367, 370 (N.D.1983). Any defects in the chain of custody go to the weight of the evidence, not admissibility. Id. “It is uniformly recognized that a document may be authenticated by circumstantial evidence, such as the events preceding, surrounding, and following the transmission of a -writing.” Haugen, at 802. Such circumstantial evidence may include information in the writing that is known by the sender and the recipient. Id. Authenticity may be evidenced by the document’s specificity, regularity, and official appearance. Evidence, 12A Fed. Proc., L Ed § 33:562, p. 336 (2002). Because N.D.R.Ev. 901 is taken from the Federal Rules of Evidence, with minor revision, we also consider federal cases to help interpret our rule. See, e.g., State v. Manke, 328 N.W.2d 799, 802 (N.D.1982).

[¶ 6] In the present case, the trial court admitted Plaintiffs Exhibit 7 largely based on Malchose’s testimony that the Worker’s Compensation Bureau summary reflected the medical bills he incurred in or from the accident. The summary’s cover letter, while uncertified and without seal, is signed by a Bureau official. The cover letter indicates the summary was sent in response to Malchose’s request for the summary. Malchose, as recipient of the document, is competent to testify that the document and the information therein was received from the Worker’s Compensation Bureau, and was therefore an authentic Worker’s Compensation Bureau summary. See United States v. Jose Jimenez Lopez, 873 F.2d 769, 772 (5th Cir.1989) (holding a judgment of conviction document was properly authenticated in a case in which a witness testified he personally requested the document and received it from a border patrol agent who procured it from a magistrate’s court; the witness’s testimony “provided circumstantial evidence to support the conclusion that the document was an official record”); see also Hartsoch, 329 N.W.2d at 370 (stating once a trial court concludes it is reasonably probable the evidence offered is what the evidence purports to be and it has not been substantially altered, any defects in the chain of custody go to the weight of the evidence, not admissibility). Malchose’s testimony, combined with internal indicia within the document itself — its specificity and official appearance — supports both the document’s apparent trustworthiness and the trial court’s determination that the document is in fact a summary of medical bills compiled by the Worker’s Compensation Bureau. See Lopez, at 772; cf. Peterson v. North Dakota Dept. of Transp., 518 N.W.2d 690, 694 (N.D.1994) (holding an unsigned, un-certified document, without seal, letterhead, or other indication of official capacity lacked verifiable indicia that the document was in fact what it purported to be). While the summary may not be direct evidence, it is competent indirect evidence of Malchose’s medical expenses. We conclude it was not an abuse of discretion for the trial court to admit the Worker’s Compensation Bureau summary.

[512]*512B

[¶ 7] The Kalfells argue the medical bill summary, even if authentic, does not fall within the public record exception to the hearsay rule because it is not a publicly available record and because a custodian was unavailable for cross-examination. “Hearsay is not admissible except as provided by these rules, by other rules adopted by the North Dakota supreme court, or by statute.” N.D.R.Ev. 802. Evidence is not excluded by the hearsay rule, even though the declarant is available as a witness, when the evidence consists of “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (ii) matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... unless the sources of information or other circumstances indicate lack of trustworthiness.” Rule 803(8), N.D.R.Ev.

[¶ 8] In the present case, the public record exception to the hearsay rule applies to a nonpublicly available record or data compilation from a public agency, and the availability of a custodian or other witness with knowledge of its making is immaterial. A record or data compilation does not have to be publicly available to fall within the exception; it need only be “made or done by an officer of the government.” 5 John H. Wigmore, Evidence, § 1630, at 617 (1974).

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Malchose v. Kalfell
2003 ND 75 (North Dakota Supreme Court, 2003)

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Bluebook (online)
2003 ND 75, 664 N.W.2d 508, 2003 N.D. LEXIS 85, 2003 WL 21538099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malchose-v-kalfell-nd-2003.