DA 09-0466

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 57

HELEN VINCENT,

Plaintiff and Appellant,

v.

BNSF RAILWAY COMPANY,

a Delaware Corporation,

Defendant and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 07-0778

Honorable Ingrid Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William G. Jungbauer; Yaeger, Jungbauer & Barczak, PLC;

Minneapolis, Minnesota

For Appellee:

Jacquelyn M. Hughes; Hedger Friend, PLLC; Billings, Montana

Submitted on Briefs: February 24, 2010

Decided: March 23, 2010

Filed:

__________________________________________

Clerk

March 23 2010
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Helen Vincent (Vincent) appeals from an order and judgment of the Thirteenth

Judicial District Court, Yellowstone County. The District Court entered judgment for

Vincent in the amount of $184,856 following a jury trial. The court subsequently denied

Vincent’s motions pursuant to M. R. Civ. P. 50 and 59. We affirm.

¶2 We review the following issues on appeal:

¶3 Did the District Court err by concluding that there was sufficient evidence to support

an instruction on mitigation of damages?

¶4 Did the District Court errin its manner of instructing the jury on the duty to mitigate

damages?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Vincent was employed byBurlington Northern Santa Fe Railway Company (BNSF)

as a laborer in Idaho. On July 10, 2005, Vincent sustained an employment-related injury to

her elbow and subsequently worked light duty until February 2006. Vincent’s employment

with BNSF ended on February 26, 2006.

¶6 BNSF offered Vincent an Inspection Officer position prior to the termination of her

employment. The position was created specifically for injured employees and tailored to

accommodate the medical restrictions of injured employees. BNSF maintains that Vincent

would have received the position if she had applied for the job and passed a background

check. Vincent ultimately elected not to apply for the job.
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¶7 Vincent filed a claimunder the Federal Employer’s Liability Act (FELA), 45 U.S.C.

§ 51. BNSF admitted liability, and the case proceeded to a jury trial on damages. Vincent

made a pretrial motion in limine to preclude BNSF from presenting evidence about the

Inspection Officer position, which was denied. Vincent also made a motion for a directed

verdict on the issue of mitigation of damages. The court denied the motion and stated, “I

think there has been at least some evidence presented with regard to the mitigation and what

[Vincent] did or didn’t do. And it seemsreasonable to have the jury decide ifin fact [BNSF]

met its burden of proof with regard to establishing that [Vincent] didn’t mitigate.”

¶8 BNSF and Vincent submitted proposed jury instructions. However, the only

instructionsregarding mitigation of damages were submitted byBNSF. Vincent objected to

all of BNSF’s proposed mitigation instructions on the basis that there was insufficient

evidence to support any mitigation instructions, but the court made it clear that mitigation

instructions would be given. Despite the fact that the District Court had denied Vincent’s

motion for a directed verdict on the issue of mitigation of damages, Vincent failed to offer

any instructions concerning mitigation, even though she was afforded the opportunity to do

so.

¶9 During the settling of instructions, Vincent objected to BNSF’s Proposed Instruction

No. 3, and the instruction was refused. Vincent objected to a portion of BNSF’s Proposed

Instruction No. 5, and the objectionable portion was stricken. Vincent did not object to

BNSF’s Proposed Instruction No. 4 on grounds other than insufficient evidence, and it was

given.
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¶10 Based on Vincent’s objections to and the District Court’s rejection of BNSF’s

Proposed Instruction No. 3, and because Vincent had offered no proposed instruction, the

court gave Montana Pattern Instruction 25.94 as Jury Instruction 28, which stated: “The

Plaintiff has a duty to minimize his damages. However, that duty does not require himto do

what is unreasonable or impracticable.” The court also gave Jury Instruction 29, which

stated that the “Defendant hasthe burden to prove that the plaintiff has failed to mitigate her

damages.” Vincent did not argue that the instructions given were insufficient. The jury

returned a verdict of $184,856 for Vincent.

¶11 In her motion for a new trial, Vincent argued, first, that “BNSF introduced no

evidence of any kind asto alternative jobs[Vincent] could performor the wage rate available

for such work.” Thus, according to Vincent, there was insufficient evidence to support

BNSF’s defense of failure to mitigate damages. Second, Vincent maintained that although

the Montana Pattern Jury Instructionsthat were given to the jury on the issue of mitigation of

damages were accurate, “[t]he problem is THEY DID NOT TELL THE JURY WHAT TO

DO.” (Emphasis in original.)

¶12 The District Court rejected both of Vincent’s arguments. With respect to Vincent’s

first argument that there was insufficient evidence to support an instruction on mitigation of

damages, the court stated that BNSF had “presented ample evidence from which the jury

could have determined [Vincent] failed to mitigate her damages.” Notably, a nurse for

BNSF testified extensively about the Inspection Officer job. “Given the evidence presented

at trial, it was within the province ofthe jury to determine ifBNSF made an actual job offer,
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the extent of [Vincent’s] physical limitations, whether the demands of the Inspector [sic]

Officer job accommodated those limitations, and whether BNSF met its burden to show

[Vincent] failed to mitigate her damages.”

¶13 With respect to Vincent’ssecond argument concerning the jury instructionsrelatedto

mitigation of damages, the court observed that Vincent had admitted that the instructionsthe

court gave were correct statements of law. The court also stated that “[d]espite the Court’s

prior denial of [Vincent’s] motion in limine to preclude [BNSF] presenting evidence

regarding mitigation of damages, [Vincent] did not propose any instructions regarding

mitigation of damages.” The court concluded that counsel for Vincent and BNSF had “full

opportunity in their closing arguments to argue to the jury the significance and meaning of

the instructions and what exactly the jury should do when considering the mitigation of

damages issue.” The District Court subsequently denied Vincent’s motion for a new trial.

Vincent appeals.

STANDARD OF REVIEW

¶14 Ourstandard ofreview relating to discretionary trial court rulings,such as the giving

of jury instructions, is whether the trial court abused its discretion. Edie v. Gray, 2005 MT

224, ¶ 12, 328 Mont. 354, 121 P.3d 516; see also Payne v. Knutson, 2004 MT 271, ¶ 14, 323

Mont. 165, 99 P.3d 200 (stating that “[w]e give great leeway to the district courts in

instructing the jury”). In reviewing whether a particular jury instruction was properly given

or refused, we consider the instruction in its entirety, as well as in connection with the other
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instructions given and with the evidence introduced at trial. See Kiely Const., L.L.C. v. City

of Red Lodge, 2002 MT 241, ¶ 62, 312 Mont. 52, 57 P.3d 836.

DISCUSSION

¶15 Did the District Court err by concluding that there was sufficient evidence to support

an instruction on mitigation of damages?

¶16 Vincent argues on appeal that “BNSF proffered no evidence of what the physical

requirements ofthe inspection officer job were.” She maintainsthat BNSF “simply failed to

meet its burden of production” in order to be entitled to an instruction on mitigation of

damages. Accordingly, Vincent contendsthat no instruction on mitigation should havebeen

given to the jury.

¶17 We disagree. The record reflects that Vincent was able to look for work and that an

appropriate job was available. A nurse for BNSF offered Vincent the Inspection Officer

position and told her that she would be willing to discuss the position with Vincent. The

nurse subsequently testified that the Inspection Officer position required only the ability to

use a cellular phone and operate a company vehicle, and that the position could be modified

to accommodate Vincent’s work restrictions. The nurse testified that Vincent would have

received the position had she applied for it and passed a background check.

¶18 Vincent, in response, testified that she had refused the position because it did not offer

union protection and because she would have had to work in the presence of an individual

she did not like. She admitted that she had never asked any questions about the position.

Vincent testified that she had previously worked in non-union positions. Moreover, Vincent
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also testified that she had hoped to become a conductor, and that the conductor position

would have required her to work in the presence of the individual she did not like. Vincent

declined BNSF’s offers to participate in vocational rehabilitation programs.

¶19 We conclude that, given the evidence presented at trial, BNSF met its burden of

production with respect to mitigation of damages. The District Court did not err by

concluding that there was sufficient evidence to support an instruction on mitigation of

damages.

¶20 Did the District Court errin its manner of instructing the jury on the duty to mitigate

damages?

¶21 Vincent arguesthat the mitigation instructions given to the jury “needed to explain to

the jury exactly what they needed to do if they found Vincent failed to mitigate. The

instructions also probably should have instructed the jury as to the meaning of mitigation

damages.” She contends that the District Court’s “duty as to instruction” and BNSF’s

burden to provide the court with proper instructions as to mitigation were not discharged

simply because Montana Pattern Instructions were used. Vincent lastly hypothesizesthatthe

jury likely “awarded no future damages due to the infirmity ofthe jury instructions” and asks

this Court to reverse and remand so that a new trial can be held on damages.

¶22 We decline to do so. We will not review the propriety of jury instructions where a

party hasfailed to preserve these issues for appeal. See e.g. Greytak v. RegO Co., 257 Mont.

147, 152, 848 P.2d 483, 486 (1993). The record reflects that Vincent objected to jury

instructions concerning mitigation on the grounds that there was insufficient evidence to
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support an instruction on mitigation of damages. She thus preserved her objection to the

instructions on those grounds.

¶23 However, because we conclude that there was sufficient evidence to support an

instruction on mitigation of damages, Vincent therefore had an obligation to proffer herown

proposed jury instructions concerning mitigation. Vincent also had an obligation toobjectto

the Montana Pattern Instructions concerning mitigation on the grounds that they were

inadequate. Vincent was aware that the District Court was going to instruct the jury on

mitigation of damages after her motion for a directed verdict was denied. Moreover,Vincent

states in her opening brief on appeal that “[t]he parties knew going in that mitigation of

damages would be the key battleground in the trial.” (Emphasis added.)

¶24 Vincent first raised the issue of the adequacy of the Montana Pattern Instructions

concerning mitigation in her Rule 50 and 59 motion. A party may not use M. R. Civ. P. 59

to raise arguments that could have been raised prior to judgment or to “give a litigant a

second bite at the apple.” Hi-Tech Motors, Inc. v. Bombardier Motor Corp. of Am., 2005

MT 187, ¶ 34, 328 Mont. 66, 117 P.3d 159. Vincent failed to raise the issue ofthe adequacy

of the mitigation instructions and failed to offer proposed jury instructions concerning

mitigation aftershe knew that the jury would be instructed about mitigation. Vincent’ssole

objection was founded on her argument that there was insufficient evidence to support an

instruction on mitigation of damages. Therefore, we conclude that Vincent failed to preserve

her objection to the adequacy of the instructions. We decline to address her argument on

appeal.
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CONCLUSION

¶25 We conclude that the District Court did not err by instructing the jury on mitigation of

damages. We decline to address Vincent’s argument concerning the adequacy of the

instructions on mitigation of damages.

¶26 Affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ PATRICIA O. COTTER

/S/ JIM RICE

/S/ BRIAN MORRIS