### FILED 

### AUGUST 25, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE RANDY L. BECHARD and ) LINDABECHARD, husband and wife, ) No. 32462-1-III ) Respondents, ) ) v. ) ) UNPUBLISHED OPINION JOYCEDALRYMPLE, ) ) Appellant. ) KORSMO, J. After ajury awarded special damages, butnogeneral damages, the trial court granted a newtrial solely onthe issue ofgeneral damages. We affirmthe grant ofa new trial, butreverse the special damage award and remand for a trial on all issues. FACTS This action arose from a July 19, 2007 accident in which defendant Joyce Dalrymple struckthepassenger side ofa vehicle driven by LindaBerchard in whichher husband, plaintiffRandy Berchard, was riding as a passenger. Mr. Berchard felt a
soreness inhis neck, butinitially didnot seekmedical treatment. He eventually saw a doctoreight days afterthe accident. An action was filed in the Yakima County SuperiorCourtthree years laterthat eventually proceededtoajurytrial. Ms. Dalrymple admitted liability, but contestedthe

### No. 32462-1-111 Bechardv. Dalrymple

amount ofdamages and whether sheproximately caused any injury. By the time oftrial, 

### Mr. Berchardhad received medical treatment for neck and backpain at the cost of $57,545.40 and sought that amount in special damages. The plaintifftestified that he had to make adjustments to his work schedule and curtail many activities he enjoyed, such as hunting, in response to the injuries. The defense examined otherwitnesses who testified that Mr. Berchard had not missed work and did not stop doing any activity he previously enjoyed. The plaintiff's medical expert testified that Mr. Berchard's condition would not improve and that his subjective report ofsymptoms was supported by objective findings relating to his back even though treating physicians had not reported any injury due to the collision. The defense medical expert found no structural indication ofinjury and suggested financial motivation might explain the reported pain. While the plaintiff's expert believed that all treatment to that point was appropriate, the defense expert did not agree that all ofthe treatment was necessary. Thejurywas instructed regarding the burden ofproofand the measure of damages. 

### It returned an award for the entire special damages sought of$57,545.40 for past expenses for medical care and treatment, but awarded zero dollars for both future economic expenses and for past and future non-economic (general) damages. Mr. Berchard moved for a new trial ormodification ofthe award. Ms. Dalrymple opposed the motions. By letter opinion, the court ordered a new trial on general damages instead 

### 2No. 32462-1-111 Bechardv. Dalrymple

ofan additur. Ms. Dalrymple moved for reconsideration and also suggested an additur in the range of$25,000 to $35,000. The court heard argument and denied the motions, concluding that there was aperiod oftime within which general damages should have been appropriate given the special damages verdict. A partialjudgment in favor ofMr. Berchard for the special damages was entered along with the order granting a new trial on general damages. Ms. Dalrymple then timely appealed to this court. ANALYSIS Ms. Dalrymple contends that the trial court erred in granting a new trial and also erred by limiting the new trial to general damages only. We address those contentions in that order. New Trial The authority to grant a new trial is found in CR 59(a). In pertinent part, with reference to the two sections l relied upon by the trial court, the rule states: Such motion may be granted for anyone ofthe following causes materially affecting the substantial rights ofsuch parties: (7) There is no evidence orreasonable inference from the evidence to justifythe verdict orthe decision, orthat it is contrary to law; (9) That substantialjustice has not been done.

1Clerk's Papers (CP) at 80. 3No. 32462-1-111 Bechardv. Dalrymple

CR 59(a)(7), (9). The decision to grant a new trial is reviewed for abuse ofdiscretion, but a "much stronger showing ofabuse ofdiscretion will be required to set aside an order granting a
new trial than an order denying one." Palmer v. Jensen, 132 Wn.2d 193, 197,937 P.2d 597 (1997). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). Although ajury's verdict can be countermanded by a trialjudge, "courts are reluctant to interfere with ajury's damage award" because it is thejury'sprovince to award damages. Palmer, 132 Wn.2d at 197. Accord, Lopez v. Salgado-Guadarama, 130 Wn. App. 87,91, 122 P.3d 733 (2005), review denied, 157 Wn.2d 1011 (2006). Ms. Dalrymple argues that thejury'sverdict was supported by the evidence and should have been upheld rather than set aside. She reasons that since she contested causation and the necessity ofsome (although not all) ofthe medical treatment and evaluation, thejury could have concluded that the accident caused the need for evaluation and treatment, but that Mr. Berchard had not established that he actually suffered any injuries. While that is a plausible theory, and may well havejustified affirming thejury's verdict, that was not how the trialjudge saw the matter. We review thejudge'snew trial order rather than thejuryverdict.

4No. 32462-1-111 Bechardv. Dalrymple

Ms. Dalrymple relies upon this court's decision in Lopez, a case where this court distinguished the Palmer decision relied on by the trialjudge. In Lopez, a district court juryhad awarded the plaintiffhis special damages, but not his general damages, in an injury action also arising from an automobile accident. 130 Wn. App. at 90. The trial judge denied a motion for a new trial, butthe superior courtjudge on appeal reversed the decision and directed that either a new trial be held or an additur awarded. 

### Id. This court reversed and reinstated thejury'sverdict, noting that thejuryhad clearly consideredand rejected-therequest for general damages and that its determination was consistent with the evidence. 

### Id. at 92-93. The plaintiffhad failed to establish sufficientpain and suffering tojustify a damage award. 

### Id. at 93. Palmer also involved an automobile accident. There thejuryhad returned one single general verdict in favor ofthe plaintiffs, but solely in the amount ofthe proven special damages. 132 Wn.2d at 195-196. The trial court denied a motion for a new trial and Division Two ofthis court affirmed. 

### Id. at 196. The Washington Supreme Court reversed and ordered a new trial, reasoning that the fact ofinjury was not contested by the defendant and the defense had failed to present evidence suggesting any ofthe treatment was unnecessary; as an injury was substantiated, damages should have been awarded. 

### Id. at 199,201-202. Since the lack ofageneral damage award was not supported by the record, a new trial was required. 

### Id. at 202-203.



### 5No. 32462-1-111 Bechardv. Dalrymple Lopez supports Ms. Dalrymple, to a degree. Like this case, and unlike Palmer, Lopez also involved separate verdicts for general and special damages, a fact that suggests that thejury knew what it was doing when it returned its verdict. Given that the jury expressly rejected an award for general damages here, Ms. Dalrymple urges that we follow Lopez and conclude that thejury found Mr. Berchard'sproofofinjury insufficient. Ifthis case were here on direct appeal from thejury verdict, we would agree with her and affirm that verdict without hesitation. However, this case is not here on direct appeal from the verdict, but from an order granting a new trial, a fact that requires our review to focus on what the trialjudge did instead ofdirectly reviewing thejury's decision. Didthe trial court have a tenable basis for setting aside thejury's verdict? We believe that the answer is yes. Where an injury is proven by the weight ofthe evidence, general damages should follow from ajury verdict awarding special damages. Palmer, 132 Wn.2d at 201-203. Where the evidence does not support a determination that injury occurred, then an award ofspecial damages does not require that general damages be awarded. Lopez, 130 Wn. App. at 92-93. That is the critical distinction betweenPalmer and Lopez. In the former case, the evidence ofinjury was solely in favor ofthe plaintiff, whereas in Lopez the evidence supported the defense view that no injury occurred. Here, there was evidence that supported Mr. Berchard's view that he was injured. The case was not a strong one, however, and there also was evidence to support Ms. 6No. 32462-1-III Bechardv. Dalrymple Dalrymple's contention that no injury occurred. In ourview, the trial courtwas permitted to credit the plaintiffs evidence and find that thejury's decisions on the special and general damages were inconsistent, thusjustifying a new trial. CR59(a)(7), (9). While

we have noted that we likewise would have upheld the opposite decision, the trialjudge here had a very tenable basis for concluding that thejury's decision was inconsistent with the evidence and, therefore itwas appropriate to order a new trial. The trialjudge did not abuse his discretion in ordering a new trial. Scope of Damages atRetrial The second question presented here is influenced by thejury's view ofthe evidence and is controlled by a different section ofthe rule. This time, however, we reach a different conclusion from that drawn by the trialjudge. The question presented is**whet~er** the trial courtproperly maintained the special damages verdict while granting a new trial on the general damages. A different portion ofCR 59(a) is at issue. The first sentence ofthat provision states: On the motion ofthe party aggrieved, a verdict may be vacated and a new trial granted to all or any ofthe parties, and on all issues, or on some ofthe issues when such issues are clearly and fairly separable and distinct, or any other decision or order may be vacated and reconsideration granted. (Emphasis supplied). These types ofcases presentthe problem ofdetermining whetherthe verdict was "rendered upon a portion ofthe litigation which was separate and distinct from other

7No. 32462-1-III Bechard

### v. Dalrymple issues; and, further, whether the limitation ofthe issues will work an injustice to any of theparties to the action." Cramer v. Bock, 21 Wn.2d 13, 18, 149 P.2d 525 (1944). See, Nelson v. Fairfield, 40 Wn.2d 496,501,244 P.2d 244 (1952); Holt v. Nelson, 11 Wn. App. 230, 243, 523 P.2d 211 (1974). Ifthere is no indication ofprejudice, a new trial on separable issues is proper. Williamson v. Irwin, 44 Wn.2d 373, 383, 267 P.2d 702 (1954). We do not believe the two damage claims are properly separated here. Where issues are properly separable, they tend to involve discrete portions ofthe case that are distinct from each other such as liability and damages or a cross-claim to a complaint. E.g., Williamson, 44 Wn.2d at 383 (verdict for plaintiffupheld, but new trial granted on defendant's cross-complaint alleging fraud); Nelson, 40 Wn.2d at 501-502 (negligence finding upheld, new trial solely on damages). In contrast, when competing claims address the same aspect ofthe case such as damages or liability, they generally are not separable claims. E.g., Cramer, 21 Wn.2d at 16-18 (new trial for plaintiffon negligence issue required new trial on defendant's cross-complaint for negligence); Holt, II Wn. App. at 242-244 (new trial due to failure to instruct on informed consentrequired new trial on other theories ofliability previously rejected by thejury). The issues ofgeneral and special damages are both subsets ofthe same category, damages, and do not appear separable in this case.

8No. 32462-1-III Bechardv. Dalrymple

In addition to requiring separable and distinct claims, a limited retrial also must not be prejudicial to a party. Williamson, 44 Wn.2d at 383; Cramer, 21 Wn.2d at 18. We believe that a limited retrial would be prejudicial to Ms. Dalrymple. As noted previously, the evidence was close on the questions ofwhether Mr. Berchard was injured and what

was the cause ofany injury. Ms. Dalrymple contested those issues as well as whether

some ofthe treatment provided Mr. Berchard was necessary. Treating the special damages as established would effectively tell thejurythat Ms. Dalrymple had in fact injured Mr. Berchard even though that question had not been definitely determined by the original verdict. Thejury may have found for Mr. Berchard on the injury and causation issues, and then erred inrejecting general damages, orthejury may have agreed with Ms. Dalrymple that she had not injured Mr. Berchard but that she had brought about a need for medical evaluation and the resulting medical expenses. Thejury was free to view the evidence in either manner, butwhich ofthose views thejurytook is not one that we can discern from the verdict. A retrial should fairly permitMs. Dalrymple again to make her arguments. 

### It would be prejudicial to the defense to limitthe retrial to general damages. 2 For bothreasons, we conclude that limiting the retrial to general damages was
error. The apparent inconsistency in the damage awards permitted thejudgeto order a

2Holt is instructive here as well. There, even though ajuryhad rejected the other theories ofmalpractice, the addition ofthe informed consenttheory at the new trial required retrial on the original theories. 11 Wn. App. at 243-244. 9No. 32462-I-II1 Bechard

### v. Dalrymple

new trial due to potential error. But, because the evidence also permitted thejuryto return die verdict it apparently did, the trialjudgewas not permittedto take the issues of injury and causation away from thejury at a second trial.3 At the next trial, the newjury may find for Mr. Berchard and return both general and special damages. Orthe nextjury may find for Ms. Dalrymple and return nothing. Or, perhaps, the nextjury might return the same verdict. It is, however, thejob ofthejuryto make those determinations. The order granting a newtrial is affirmed, thepartialjudgmentin favor ofMr. Berchard is reversed, and the matter is remanded for trial on all issues. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but 

### it will be filed for public record pursuant to RCW 2.06.040.

# ~. WE CONCUR:

3 

### It may be appropriate to use special interrogatories on these issues to avoid a confusingrepeat verdict. 10