Osetek v. Jeremiah

621 S.E.2d 202, 174 N.C. App. 438, 2005 N.C. App. LEXIS 2489
Court of Appeals of North Carolina·Decided November 15, 2005·No. COA04-742-2·Published·Cited by 9 cases

Opinions

[439]*439BRYANT, Judge.

Jean Marie Osetek (plaintiff) appeals from an order filed 11 December 2003 denying her motion for judgment notwithstanding the verdict (JNOV) and for a new trial for damages arising out of a car accident with Jason Lee Jeremiah (defendant).

On 17 April 2001, plaintiff was operating her car in a southerly direction on Merchant Drive in Apex, North Carolina. Plaintiff stopped her car at a stop sign. Defendant failed to stop his car and drove into the rear end of plaintiffs car.

Plaintiff filed a complaint on 8 March 2002 requesting monetary damages from defendant for personal injuries sustained as a result of the accident. On 1 May 2002, defendant filed an answer which denied negligence and alleged plaintiff was contributorily negligent. By consent order dated 23 September 2003, this case was transferred to the Superior Court Division of Wake County.

At trial, plaintiff tendered and offered into evidence various medical bills totaling $15,554.30 incurred for treatment of her injuries. In addition to her own testimony, plaintiff presented testimony of her chiropractor, Dr. Robert Baric and several other witnesses before resting her case-in-chief.

Plaintiff and defendant’s motions for directed verdict at the close of plaintiff’s evidence and at the close of all evidence were denied. Plaintiff’s motion on the issue of contributory negligence was allowed, all other motions were denied.

During the charge conference, plaintiff offered written requests for special jury instructions on the issues of presumptions and damages which were denied. After the trial court concluded its instructions to the jury, plaintiff renewed objections to the instructions and renewed requests for instructions to the trial court.

The jury returned a verdict answering the first issue, “Was Jean Marie injured by the negligence of the defendant, Jason [Lee] Jeremiah?” “Yes”; and the second issue, “What amount is the plaintiff entitled to recover for her personal injuries?” “$600.00.” On 14 August 2003, a written judgment was entered by the trial court for plaintiff to receive $600.00 in damages for personal injuries.

On 18 August 2003, plaintiff filed a written motion pursuant to Rules 50, 59 and 60 of the North Carolina Rules of Civil Procedure for JNOV and for a new trial. By order filed on 11 December 2003, the [440]*440trial court denied plaintiff’s motion for JNOV and for a new trial. Plaintiff appealed.

On appeal plaintiff raises the following issues whether the trial court erred in: (I) failing to submit plaintiffs requested jury instructions; (II) signing and entering the 14 August 2003 judgment; and (III) denying plaintiffs motion for JNOV and for a new trial. Defendant cross-assigns as error whether the trial court erred in (IV) entry of a directed verdict on the issue of plaintiffs contributory negligence.

I

Plaintiff argues the trial court failed to properly instruct the jury on the issue of presumptions related to the reasonableness of medical care charges and personal injury damages, and she is therefore entitled to a new trial. We disagree.

To prevail on the issue of whether her requested instructions should have been given to the jury, plaintiff must demonstrate that:

(1) the requested instruction was a correct statement of the law, and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested, and (4) such failure likely misled the jury.

Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274 (2002). A jury charge will be sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. Bass v. Johnson, 149 N.C. App. 152, 560 S.E.2d 841 (2002). Refusal of a requested charge is not error where the instructions fairly represent the issues. Bowers v. Olf, 122 N.C. App. 421, 428, 470 S.E.2d 346, 351 (1996). The decision whether to give jury instructions is within the trial court’s sound discretion, and will not be overturned absent an abuse of discretion. Blackmon v. Bumgardner, 135 N.C. App. 125, 138, 519 S.E.2d 335, 343 (1999).

Plaintiff contends the trial court should have instructed the jury as follows on the portion of North Carolina Pattern Jury Instructions (N.C.P.I. — Civ. 101.62 (motor veh. vol. 2004)): “[Y]ou will accept as conclusive and binding on you that the charges for hospital, medical, chiropractic, therapy and medication, as to which the plaintiff testified, are reasonable in amount, unless you find that the defendants have produced evidence to the effect that the charges are not reasonable.”

[441]*441N.C. Gen. Stat. § 8-58.1 creates a rebuttable mandatory presumption of the reasonableness of medical charges under certain conditions1. N.C.G.S. § 8-58.1 (2003). Where a plaintiff introduces medical bills in support of her testimony, unless the defendant rebuts this presumption with other evidence, the jury must find that the amount is reasonable. Jacobsen v. McMillan, 124 N.C. App. 128, 134, 476 S.E.2d 368, 371-72 (1996).

Analyzing the facts in the instant case, plaintiff presented her medical expenses to the jury, which were challenged by defendant’s rebuttal evidence. The parties did not stipulate to plaintiffs medical expenses, which left “an issue” for the jury to resolve. See Blackmon at 134, 519 S.E.2d at 341 (“[b]ecause the parties did not stipulate to . . . damages, [this issue was] to be considered by the jury.”).

Defendant’s rebuttal evidence challenged whether plaintiff’s medical treatment and expenses from the 2001 collision were reasonable and necessary. Defendant’s evidence showed plaintiff had been receiving chiropractic care since 1995 for low back pain resulting from a prior collision. Testimony from the chiropractor and the physical therapist showed plaintiff accumulated substantial medical bills for various other treatments. Defendant’s evidence challenged the legitimacy of these treatments and whether the resulting medical charges were a proximate cause of the 2001 collision with defendant.

Thereafter, the trial court gave the following instructions in pertinent part:

The Plaintiff may also be entitled to recover actual damages. On this issue, the burden of proof is on the Plaintiff. This means that the Plaintiff must prove by the greater weight of the evidence the amount of actual damages proximately caused by the negligence of the Defendant, Jason Lee Jeremiah. Actual damages are the fair compensation to be awarded to the person for any past, present or future injury proximately [442]*442caused by the negligence of another. The total of all damages are to be awarded in one lump sum. Such damages may include medical expenses, loss of earnings, pain and suffering, and permanent injury. I would now explain the law of damages as it relates to each of these.

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Osetek v. Jeremiah, 621 S.E.2d 202, 174 N.C. App. 438, 2005 N.C. App. LEXIS 2489 (N.C. Ct. App. 2005).

621 S.E.2d 202 (Osetek v. Jeremiah) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Osetek v. Jeremiah
621 S.E.2d 202 (Court of Appeals of North Carolina, 2005)