UNITED STATES CO URT OF APPEALS TENTH CIRCUIT
LARRY C. NORTH, individually and in his capacity as the Executor of the Estate of Mary North, deceased, Plaintiff – Appellant,

v. ROBERT L. CUMMINGS; JUDY A. CUMMINGS, trustees or their successors in trust under the Robert L. and Judy A. Cummings Living Trust dated July 14, 2002; ROBERT L. AND JUDY A. CUMMINGS LIVING TRUST DATED July 14, 2002, Defendants – Appellees. No. 08-8054 (D. Wyo.) (D. Ct. No. 2:06-CV-00174-WFD)

ORDER AND JUDGMENT *

Before O’BRIEN , BRORBY , and GORSUCH , Circuit Judges.
Mary L. North, the wife of Appellant, La rry C. North, was k illed when the vehicle in which she and Larry were traveling was st ruck head-on by an SUV driven by Robert

* This order and judgment is an unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation – (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit December 4, 2009 Elisabeth A. Shumaker Clerk of Court2 L. Cummings. Larry brought an action agai nst Cummings asserting claims for personal injury, negligent infliction of emotional distress and wrongful death. A jury found Cummings was negligent and awarded Larry $7 7,734 on his personal injury claim and $15,000 on his negligent infliction of emotiona l distress claim. On the wrongful death claim, the jury awarded $5, 000 each to Larry, Mary’s tw o children and each of Mary’s parents. Though acknowledging “the Jury aw ard was surprisingly low,” the trial court denied Larry’s motion for a new trial. (A ppellant’s App., Vol. II at 439.) The court granted Cummings’ motion for credit on the judgme nt pursuant to Wyo. Stat. Ann. § 1-1- 108, concluding Cummings was entitled to a cred it for the amount he paid Larry prior to trial to compensate him for property damage . Larry appeals from these decisions; we affirm.
I. BACKGROUND Mary and Larry married in 1997. 1 Mary had two children from a previous marriage. On July 6, 2004, Mary and Larry were trav eling in their motor home in northeastern Wyoming when they were st ruck head-on by Robert Cummings, who was attempting to pass a tractor-trailer in the left lane of a two-lane highway. Mary was unresponsive following the accide nt. Larry sustained serious in juries in the accident and was trapped inside the motor home with Mary for approximately two hours. Mary was 53-years-old at the time of her death.

1 This was Mary’s third marriage.3 Larry filed a complaint against Cummings 2 on behalf of himsel f, Mary’s parents, Mary’s children and as the personal representa tive of Mary’s estate. During the five-day trial, Larry presented eviden ce regarding the expenses he incurred as a result of the accident. These expenses to taled $59,168.40 a nd included charges for ambulance transportation, hospitalization, clinic vi sits, pharmaceuticals and lost earnings. Larry also presented eviden ce regarding Mary’s contribu tion to the household and the loss he and Mary’s parents and children e xperienced after her death. Prior to her death, Mary worked full-time earning $32,000 per year. In addition, she did all the housework, with the exception of washing dishes, and was responsible for paying the bills. Mary and Larry frequently hosted family gatherings at their house. Larry testified she was the “glue that kept [the family] toge ther.” (Appellant’s App., Vol. I at 73.) Mary’s elderly parents depended upon Mary and she visited them almost daily. Mary also had a close relatio nship with her children. Mary had intended to work full-time for seven more year s at the time of her death. Her employer projected her salary and benef its for seven years woul d total $279,695.72. Economist Ralph J. Brown, Ph.D., testifie d the economic loss resulting from Mary’s death, including loss of earnings, earning cap acity, fringe benefits and home services, minus personal consumption, was between $322,174 and $394,860.

2 The complaint named Robert L. Cummings individually as a defendant. He also named Cummings, with his wife, Judy A. Cummi ngs, as trustees of the Robert L. and Judy A. Cummings Living Trust Dated July 14, 2002, and the Trust itself as defendants. The jury found Robert was acting in furtheranc e of the business of the trust at the time of the accident. For the sake of simplicity, we refer to the Defendants collectively as “Cummings.”4 Larry’s economic loss claim was conteste d. Brown assumed Mary consumed 18- 20% of her and Larry’s gross in come but did not determine he r actual consumption rate. Brown admitted when a husband earns more than his wife, the wife may consume all of her income and part of her husband’s income as well. Larry testified he did not know how much of Mary’s income she used for her individual e xpenses. Brown also included a substantial figure for loss of household serv ices in his calcula tion though he admitted Mary was never paid for her household servic es and after her deat h, Larry did not pay anyone to perform household services. More over, Brown’s calculations did not take account of the fact that after Mary’s death, Larry received Mary’s retirement benefit of $950 per month and received disc ounted health insurance. The parties stipulated as to the amount of Mary’s funeral expenses ($9,067.18).
The funeral bill was admitted into evidence and included a receip t to Larry. Prior to trial, Cummings voluntarily paid La rry $11,455 for damage to the motor home and its

contents. 3 Larry made a claim for the same pr operty damage at tr ial. The written stipulation of the value of the motor home a nd its contents indicated the amount was to be divided equally between Mary’s estate and Larry. Mary’s parents testified compensation wa s not their primary motive for bringing suit. Her father was asked whether “a money aw ard is going to help solve the absence of Mary in [his] life.” (Appellant’s App., Vol. II at 281.) He answered: “No, it won’t. Money won’t solve [it] at al l. That’s for sure.” ( Id .) Mary’s mother was asked whether

3 The jury was not aware Larry rece ived any payment prior to trial.5 she “want[ed] someone to pay for [her] daughter’s death.” ( Id. at 272.) She answered: “I think [Cummings] should be made to suffer the way we have suffered in some way. He didn’t have to go to prison, and justice should be served.” ( Id. ) Cummings’ wife testified her husband “has suffered so much. He has never been able to talk about [the accident] without breaking down.” (Appellees’ Supp. App. at 17.) The jury was instructed:
JURY INSTRUCTION NO. 16 If you decide for Plaintiff, Larry North, on the qu estion of liability for his personal injuries, you must fi x the amount of money that will reasonably and fairly compensate Plai ntiff for those elements of damage proved by the evid ence, taking into consideration the nature, extent, and duration of the injury. The claimed elements of damage are: (a) The pain, suffering, and em otional distress experienced as a result of the injuries and those reasona bly probable to be experienced in the future; (b) Disability; (c) Loss of enjoyment of life and any loss of enjoyment of life reasonably probable to be experienced in the future. Th e award for this specific elements should not duplicate the award given or any other element of damage; (d) Loss of earnings and Earnin g Capacity. The value of time, earnings, profits, salaries lost to this date, and the present cash value of any earnings reasonably probable to be lost in the future, taking into consideration any lost earning capa city of the plaintiff; [and] (e) Medical expenses. The reasonable expense of necessary medical care, treatment, and services received to date and any medical expense reasonably probable to be incurred in the future[.] Whether any of these elements ha ve been proved is for you to6 determine. JURY INSTRUCTION NO. 17 There is no formula the Court can give you for the determination of damages for pain and suffering, emoti onal distress, loss of enjoyment of life and disability or any future damages . . . . The amount awarded, if any, rests within your sound discretion a nd is for you to determine . . . .
* * * JURY INSTRUCTION NO. 20 If you find for Plaintiff, Larry Nort h, on the question of liability, you shall determine the amount of damages, if any, sustained by each claimant, taking into account the na ture, extent, and dura tion of each of the following: (a) The amount each such clai mant has failed or will fail to receive from the decedent’s earnings . . . ; (b) The loss of probable futu re companionship, society and comfort; and (c) Any other monetary or pec uniary loss sustained and proved by any of the claimants resulting from the death of the decedent, including any funeral expenses a nd other proper charges. There is no formula that the cour t can give you for the determination of damages for loss of probable future companionship, society and comfort. It is not necessary that any witness sh all have expressed any opinion as to the dollar amount of damages. Your aw ard, if any, shall be such sum as will fairly and adequately compensate the claimants. The amount awarded, if any, rests within your sound discre tion, and it is up to you to determine

. . . . * * *7 JURY INSTRUCTION NO. 23 You are instructed that the claima nts in this action may not recover damages for mental anguish or grief suffered as a result of the death of Mary North. 4 (Appellant’s App., Vol. II at 386-93.) The jury returned a ve rdict in favor of Larry. It aw arded $77,734 to Larry on his personal injury claim and $15,0 00 on his negligent infliction of emotional distress claim. On Larry’s wrongful death cl aim, the jury awar ded $5,000 each to Larry, Mary’s two children and each of Mary’s parents. Larry did not object to the jury verdict and final judgme nt was entered on April 9, 2008. On April 16, 2008, Cummings filed a motion fo r credit on the judgment seeking credit in the amount of $11,455, which was the am ount he paid to Larry prior to trial. On April 22, 2008, Larry filed a motion for a ne w trial seeking a new trial on the issue of wrongful death damages, or, in the alternative, a new trial on all issues. The court held a hearing on both motions. Larry argued the jury award was “grossly and manifestly inadequate” and “the jury neglected to take into consideration . . . the evidence as to damages.” ( Id. at 413, 415.) The court denied Larry ’s motion for a new trial and granted Cummings’ motion for credit on the judgment.
II. DISCUSSION Larry contends the district court erred in denying his motion for a new trial and in granting Cummings’ motion for credit on the j udgment pursuant to Wy o. Stat. Ann. § 1-

4 Larry’s claim for negligent infliction of emotional distress was an exception to this instruction; he could recover for mental anguish or grief on that claim.8 1-108. “We review a district court’s dispos ition of a motion for . . . new trial on damages for a manifest abuse of discretion.” Telecor Commc’ns, Inc. v. Sw. Bell Tel. Co. , 305 F.3d 1124, 1143 (10th Cir. 2 002) (quotations omitted). “We review the district court’s interpretation of [a stat e] statute[ ] de novo.” Breaux v. Am. Family Mut. Ins. Co. , 554 F.3d 854, 863 (10th Cir. 2009). Because this case is grounded on di versity jurisdiction, the substantive law of Wyoming governs. See Blanke v. Alexander , 152 F.3d 1224, 1228 (10th Cir. 1998).
A. Motion for a New Trial “[A]bsent an award so excessi ve or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corr uption or other improper cause invaded the trial, the ju ry’s determination of the fact is considered inviolate.” Telecor Commc’ns, Inc. , 305 F.3d at 1143 (quotations omitted). “[E]ven where a persuasive explanation of the jury’s damages award indicates an award contrary to law, the possibility of a proper explanation, howev er slight the chance, will suffice to sustain the damages award.” Id. (quotations omitted); see also Cont’l Cas. Co. v. Sw. Bell Tel.
Co. , 860 F.2d 970, 972- 73 (10th Cir. 1988) (“The amount of damages awarded by the jury can be supported by any competent evidence tending to sustain it, and our appellate function is completed when we are convinced that an evidentiary basis in the record supports the jury’s verdict.”) (quotations omitted). Larry does not claim there is direct eviden ce that passion, prejudice, corruption or other improper cause invaded the trial. Instead, he contends the award is so inadequate as to shock the judicial conscience because: (1 ) the jury did not award funeral expenses or9 stipulated property damages; (2) the jury did not compensate Larry fo r the loss of Mary’s earnings and services; and (3) the jury awarded only $5,000 to each of the wrongful death
claimants. The district court rejected each of these arguments. 5 It explained: “The Court believes that the jury award was surprisingl y low, but Plaintiffs have presented no objective evidence to demonstrate that the ve rdict was inadequate.” (Appellant’s App., Vol. II at 439.) We perceive no “manifest abuse of discretion.” Telecor Commc’ns, Inc. , 305 F.3d at 1143 (quotations omitted). As to Larry’s first argument, the jury coul d have included the funeral expenses and stipulated property damages in Larry’s personal injury award. 6 It awarded $77,734 to Larry for personal injuries. Larry’s medi cal treatment and lost earnings totaled $59,168.40. If the jury added the funeral ex penses ($9,067.18) and stipulated property damages ($11,455) to this amount, the total w ould be $79,690.58, which differs from the amount actually awarded by less than $2,000. Larry contends the jury could not have in cluded funeral expenses in his personal

5 The court also determined Larry waiv ed his right to challenge any alleged inconsistency in the verdict. On appeal, La rry is only challenging the adequacy of the verdict; he does not claim the verdict is inconsistent. Larry cannot challenge the consistency of the verdict because, as the distri ct court correctly found, this was a general verdict and Larry waived his right to object to any alleged inconsistency by failing to object to the verdict before the jury was discharged. See Fed. R. Civ. P. 49 (distinguishing between genera l and special verdicts); Johnson v. Ablt Trucking Co. , 412 F.3d 1138, 1141 (10th Cir. 2005 ) (“[A] party waives the right to object to inconsistencies in a general verdict . . . if it does not object . . . before the jury is discharged unless the verdict is inconsistent on its f ace . . . .”) (quotations omitted).

6 Alternatively, the jury could have fo und these amounts were non-compensable. A jury is not bound to include any partic ular category of damages in its award.10 injury award because the court instructed the jury that fu neral expenses were to be included in wrongful death damages. While “[w]e presume the jury follows its instructions,” United States v. Rogers , 556 F.3d 1130, 1141 (10th Cir.), cert. denied , 129 S. Ct. 2783 (2009), our task in reviewing the adequacy of a damages award is to determine only whether there is a “po ssibility of a proper explanation.” Telecor Commc’ns, Inc. , 305 F.3d at 1143. It is surely po ssible the jury incl uded the funeral expenses and stipulated propert y damages in Larry’s personal injury award. Notably, the funeral expenses and stipulated property damages were included along with elements of Larry’s personal injury claim on a list of expenses that the jury saw. As to Larry’s second argument, the jury could have concluded Larry was not entitled to an award for the lo ss of Mary’s earnings and services despite Brown’s expert testimony to the contrary. The jury was proper ly instructed it was “not bound to accept an expert’s opinion as conclusi ve” and could “disregard an ex pert’s opinion if [it found] it to be unreasonable or not adequately supporte d.” (Appellant’s App., Vol. II at 384.) We are similarly unpersuaded by Larry’s third argument. He claims “[a]n award of $5,000.00 each to [himself], [Mary’s] pare nts and her children is definitely grossly and manifestly inadequate.” (A ppellant’s Opening Br. at 12

. ) He contends: “[F]or whatever reason, the jury simply ignored the evidence in this case.” ( Id . at 16.) In support of this argument, he relies principally on Rodriguez v. Ager , 705 F.2d 1229 (10th Cir. 1983). Rodriguez and three of his seve n children were killed when th e automobile in which they were riding was struck by Ager’s semi-tract or-trailer. Rodriguez’s wife obtained a jury award of approximately $65,000 against the owne r and driver of the truck for the death of11 her husband. She recovered only the funeral expenses for the death of her children even though she “was shown to be very close to her children.” Id. at 1236. The primary issue on appeal was whether the district court erre d in not ruling the lessee of the truck was legally responsible for the injuries. After re solving this issue, we “consider[ed] whether the jury was correct in its finding that [Rodriguez’s wife ] was only entitled to funeral expenses as damages for the death of her three children.” Id . We stated: “A trial court’s refusal to grant a new trial on the issue of inadequate damages can be reversed and vacated whereas here the jury seemingly disr egarded the elements of wrongful death.” Id. at 1237. Without any significant discu ssion, we concluded the damages awarded for the death of the children were “legally inadequate.” Id. Rodriguez is easily distinguished from the presen t case. There, the jury’s award of

no damages for loss of companionship could “be attributed only to th e jury disregarding the evidence altogether . . . .” Id. Here, however, Larry and the other wrongful death claimants each received $5,000. This award, even if small, does not give rise to the same inference that the jury abdicated its duty. Moreover, there are numerous cases which hold a damages award is not inadequate as a ma tter of law simply becau se it is lower than might be expected.
In Crane v. Mekelburg , the plaintiffs brought an action against the intoxicated driver of a vehicle which over turned, causing the death of the plaintiffs’ son and brother. 728 F.2d 439 (10th Cir. 1984). The jury fo und the defendant was negligent and awarded approximately $3,5 00 to the decedent’s es tate and $10,000 each to the decedent’s parents but awarded no damages to the decedent’s four siblings. We affirmed the district court’s12 denial of plaintiffs’ motion for new trial st ating: “Even though this court might have awarded damages on a different plan e, this is not the test as to whether the jury’s verdict was in error . . . . [W]e cannot just take a look at the small amount of a verdict and conclude that we must, as a matter of law, presume that bias and prejudice was present. Indeed the opposite is the practice.” Id. at 443.
In Black v. Hieb’s Enterprises, Inc. , we held an award of $55,000 for “facial lacerations and scarring, facial fractures, th e loss of one eye, emotional harm, loss of employment and employment prospects, pain and suffering now and in the future, loss of marital opportunity and other damages” resu lting from a product defect was “not so inadequate as to raise . . . an inference [of passion or prejudice on the part of the jury].” 805 F.2d 360, 362 (10th Cir. 1 986) (quotations omitted). We explained: “In this case, as in most cases, the only guide available upon revi ew to test the properness of an award is a comparison of amount with injury.” Id. (quotations omitted). “It was the jury’s function, as the trier of fact, to determine the amount of damages that would fairly compensate [the plaintiff], and the jury has wide disc retion in making that determination.” Id. at 362-63; see also McPike v. Scheuerman , 398 P.2d 71, 74 (Wyo. 1965) (p arents of 14-year-old girl struck while in a marked crosswalk sought over $25,000 in damages from 15-year-old driver; jury awarded $3,500; court affirmed de nial of motion for a new trial stating “[h]ad the jury given a larger amount . . . justice may have been better served, but this court is in no position to substitute its j udgment for that of the jury and the trial court without a compelling reason, which is here lacking.”). Here, the jury was instructed: “The amount awarded, if any, rests within your13 sound discretion . . . . Your award, if any, should be for what damages are reasonable and just.” (Appellant’s App., Vol. II at 390.) While justice may have been better served by a larger award, there is nothing in the reco rd to suggest the district court abused its discretion in concluding a wrongful death award of $25,000 (divided amongst five claimants) is adequate as a matter of law. Th e jury could have found, consistent with the testimony of Mary’s parents, that Larry brou ght this suit to make Cummings suffer and, as Cummings’ wife testified, he had already suffered enough. See, e.g., Woodbury v. Nichols , 797 P.2d 556, 558 (Wyo. 1990) (rejec ting plaintiffs’ argument that damages award was inadequate where the jury found defendant 55% liable for decedent’s death but awarded no damages because, inter alia , “each of the family members testified that money was not the object of the suit, but rather they had brought suit to put out message about . . . drinking and driving”; “[t]he jury , at least in part, may have taken the[se] [family members] at their word”).
B. Motion for Credit on the Judgment The district court granted Cummings’ moti on for credit on the judgment pursuant to Wyo. Stat. Ann. § 1-1-108, which states in relevant part: No voluntary partial payment of a clai m based on alleged liability for injury or property damage shall be construed as an admission of fault or liability, or as a waiver or release of claim by the person receiving payment . . . . After entry of judgment, any such payment shall be treated as a credit and deducted from the amount of the judgment . If after partial voluntary payments are made it is determined by final judgment of a court of competent jurisdiction that the payor is liable for an amount less than the voluntary payments already made, the payor has no right of action for the recovery of amounts by which the vol untary payments exceed the final judgment. No voluntary partial paymen ts shall be construed to reduce the amount of damages which may be pleaded and proved in a court14 proceeding between the parties. (Emphasis added). According to the district court, this statute “provides that pre-trial voluntary payments will be deducted fro m the judgment if the payment was made on the basis of alleged liability for property damage. The statute does not consider whether the jury awards plaintiff relevant damages for a deducti on to apply.” (Appellant’s App., Vol. II at 428.) Thus, the court held Cummings was en titled to credit for the amount he voluntarily paid prior to trial ($11,455) regardless of wh ether the jury actually included this amount in its award. Larry contends the court erred because it is clear the jury did not award the stipulated damages. He argues: “Inherent in the statutory scheme is the presumption that the Judgment actually includes such amounts against which a deduction could be made or credit given.” (Appellant’s Opening Br. at 20.) As an initial matter, we note the jury coul d have included the stipulated damages in Larry’s personal injury award. However, be cause the verdict was a general verdict, we do not know specifically which damages were or were not included. But that uncertainty would not have occurred had Larry requeste d a separate property damage line on the verdict form or sought clarif ication of the verdict before the jury was dismissed. By failing to do so, Larry waived the argument that the jury did not award the stipulated property damages. See Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1468 (10th Cir. 1992) (stating that party’s failure to object to verdic t form or seek clarification of verdict bars that party from taking advantage of resulti ng ambiguity on appeal). Even assuming, arguendo , Larry did not waive the argument, our de novo review satisfies us that the15 district court did not err in interp reting Wyo. Stat. Ann. § 1-1-108. See Breaux , 554 F.3d
at 863. The Wyoming Supreme Court has explained the procedure it uses in interpreting a Wyoming statute: We endeavor to interpret statutes in ac cordance with the legi slature’s intent. We begin by making an inquiry re specting the ordina ry and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we constr ue all parts of the statute in pari materia. When a statute is sufficien tly clear and unambiguous, we give effect to the plain and ordinary meani ng of the words and do not resort to the rules of statutory construction. Johnson v. City of Laramie , 187 P.3d 355, 357 (Wyo. 20 08) (quotations omitted). “[W]hether a statute is ambigu ous is a matter of law to be determined by the court.” Chevron U.S.A., Inc. v. Dep’t of Revenue , 154 P.3d 331, 335 (Wyo. 2007) (quotations omitted). “A statute which is uncertain and susceptible of more than one meaning is ambiguous.” Haderlie v. Sondgeroth , 866 P.2d 703, 711 (W yo. 1993) (quotations omitted). The Wyoming Supreme Court has not yet c onsidered the question presented here. Our job is to predict how the Wy oming Supreme Court would rule. See TMJ Implants, Inc. v. Aetna, Inc. , 498 F.3d 1175, 1180 (10th Cir. 20 07) (a federal court applying state law where no controlling state decision exists “must attempt to predict what the state’s highest court would do”) (quotations omitted ). It is unlikely the Wyoming Supreme Court would conclude § 1-1-108 is ambiguous . The statute provides: “After entry of judgment, any [voluntary partial] payment [of a property damage claim] shall be treated16 as a credit and deducted from th e amount of the judgment.” Wyo. Stat. Ann. § 1-1-108. This language is not susceptible to more than one meaning. The word “shall” is mandatory, not discretionary. See In re LePage, 18 P.3d 1177, 1180 (Wyo. 2001) (“Where a statute uses the ma ndatory language ‘shall,’ a court must obey the statute as a court has no right to make the law contrary to what is prescribed by the legislature.”). And the statue does not—either expressl y or impliedly—make post-judgment credit conditional upon the partial payment being in cluded in the judgment. While “a statute should not be construed . . . in a manner producing absurd results,” Haderlie , 866 P.2d at 711, this reading does not render an ab surd result. The purpose of § 1-1-108 is to “pr ovid[e] a means for a potentially liable defendant . . . to pay medical bills and othe r damages immediately after an injury and during recovery without the necessity of the injured party filing a legal action.” Id

. The statute is beneficial to an in jured party who can receive partial payments of medical bills, lost earni ngs and other loss promptly without using his own funds, borrowing, or facing bankruptcy for large medical expense he is unable to pay. It is beneficial to the potentially liable party who can aid the injured person during recovery, act reasonably, maintain good relations with the injured pe rson, and perhaps settle the claim, avoiding the substantial co st and expense of litigati on and trial . . . . The statute then protects the party paying (payor) by providing a credit for all payments and prohibiting us e of voluntary payment to establish liability. It protects the injured party in allowing litig ation if settlement is not achieved. Id. The purpose of the statute is in no way frustrated by our reading. Cummings elected to compensate Larry for his property damage before trial. Larry requested the jury include this property damage in his award. The jury may or may not have included it in17 Larry’s personal injury award. In either case, Cummings is entitled to a credit on the judgment.
AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge