1

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 84

Lee Zander, individually and as Executor 

of the Estate of Taylor Goven, deceased; 

and Lee Zander on behalf of the heirs and 

next of kin of Taylor Goven, deceased; 

and Jason Renschler, individually and as

Executor of the Estate of Abby Renschler,

deceased; and Jason Renschler and Sandra

Renschler on behalf of the heirs and next 

of kin of Abby Renschler, deceased; and

Shayna Monson, Plaintiffs and Appellees

v.

Jordan Morsette, Defendant and Appellant

No. 20200211

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Daniel J. Borgen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Chad C. Nodland (argued), Bismarck, North Dakota, for plaintiff and appellee 

Lee Zander, individually and as Executor of the Estate of Taylor Goven, 

deceased, and Lee Zander on behalf of the heirs and next of kin of Taylor 

Goven, deceased.

Thomas A. Dickson (appeared), Bismarck, North Dakota, for plaintiffs and 

appellees Jason Renschler, individually and as Executor of the Estate of Abby 

Renschler, deceased, and Jason Renschler and Sandra Renschler on behalf of 

the heirs and next of kin of Abby Renschler, deceased.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 13, 2021 

STATE OF NORTH DAKOTA
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Jeffrey S. Weikum (argued), Bismarck, North Dakota, for plaintiff and appellee 

Shayna Monson.

Kay N. Hunt (argued), Minneapolis, Minnesota, and Sean F. Marrin

(appeared), Bemidji, Minnesota, for defendant and appellant.

Steven J. Leibel and Tyler J. Siewert, Bismarck, North Dakota, for amicus 

curiae Mothers Against Drunk Driving in support of plaintiffs and appellees.
1

Zander v. Morsette

No. 20200211

Tufte, Justice.

[¶1] Jordan Morsette appeals from an amended judgment ordering him to 

pay $242 million in compensatory damages and $885 million in punitive 

damages to Shayna Monson; Lee Zander, individually and on behalf of Taylor 

Goven, deceased; and Jason Renschler, individually and on behalf of Abby 

Renschler, deceased (Plaintiffs). Morsette argues the district court erred in 

admitting evidence of his intoxication, erred in its instructions to the jury, and 

erred by granting the Plaintiffs’ motion to amend their complaint to add a 

punitive damages claim. Morsette also argues the jury’s verdict was excessive. 

We reverse the amended judgment and remand for a new trial.

I

[¶2] In June 2015, while driving on the wrong side of the Bismarck 

Expressway, Morsette’s vehicle collided head on with Monson’s vehicle. 

Monson suffered serious bodily injuries, and Goven and Renschler died at the 

crash scene. Morsette’s blood alcohol concentration was 0.295 percent at the 

time of the collision.

[¶3] The Plaintiffs sued Morsette for negligence, seeking damages for their 

injuries. Morsette answered and admitted liability for the accident. The 

Plaintiffs moved to amend their complaint to add a punitive damages claim, 

alleging Morsette’s conduct was oppressive and malicious. The district court 

granted the Plaintiffs’ motion, finding they “met the threshold of malice

necessary to amend the complaint to request punitive damages.”

[¶4] Before trial, Morsette moved to exclude references at trial to his 

intoxication at the time of the accident. The district court denied Morsette’s 

motion, concluding Morsette’s intoxication was relevant to the Plaintiffs’

compensatory damages. The court bifurcated the trial for separate proceedings 

on compensatory and punitive damages. The jury awarded $36 million in 

compensatory damages, more than $2 million in interest on past damages, and 

$295 million in punitive damages to each of the Goven and Renschler plaintiffs. 
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The jury awarded $170 million to Monson in compensatory damages, more 

than $5.2 million in interest on past damages, and $295 million in punitive 

damages.

[¶5] Morsette moved for a reduction of damages and a new trial. He argued 

the district court erred in the compensatory damages phase of trial by 

admitting evidence of his intoxication, the court erred in its jury instructions, 

the jury’s verdict was excessive, and the Plaintiffs’ references to his absence at 

trial should have been excluded. After a hearing, the court reduced the punitive 

damages awarded to the Goven and Renschler plaintiffs to $72 million each as 

required by N.D.C.C. § 32-03.2-11(4). The court denied Morsette’s motion for a 

new trial, concluding his intoxication was relevant at trial regarding the 

Plaintiffs’ damages.

II

[¶6] Morsette argues the district court abused its discretion by denying his 

motion for a new trial. He asserts the court erred in admitting evidence of his 

intoxication in the compensatory damages phase of trial and claims his 

intoxication was not relevant to the Plaintiffs’ damages after he admitted 

liability. Morsette also argues the court erred in its jury instructions and the 

jury’s verdict was excessive.

[¶7] We review a district court’s decision on a motion for a new trial under 

the abuse of discretion standard. Rentz v. BNSF Ry. Co., 2020 ND 254, ¶ 12, 

952 N.W.2d 47. A court abuses its discretion when it acts in an arbitrary, 

unconscionable, or unreasonable manner, when it misinterprets or misapplies 

the law, or when its decision is not the product of a rational mental process 

leading to a reasoned determination. Id.

A

[¶8] Morsette claims the district court erred in admitting evidence of his 

intoxication. He argues his intoxication was not relevant to the Plaintiffs’ 

compensatory damages after he admitted liability.
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[¶9] A district court has broad discretion in admitting or excluding evidence 

at trial. Flynn v. Hurley Enterprises, Inc., 2015 ND 58, ¶ 5, 860 N.W.2d 450.

Generally, relevant evidence is admissible, and irrelevant evidence is not 

admissible. N.D.R.Ev. 402. “Evidence is relevant if: (a) it has any tendency to 

make a fact more or less probable than it would be without the evidence; and 

(b) the fact is of consequence in determining the action.” N.D.R.Ev. 401. Under 

N.D.R.Ev. 403, the court may exclude relevant evidence if its probative value 

is substantially outweighed by the danger of unfair prejudice or misleading the 

jury. Even if the court errs at trial, N.D.R.Civ.P. 61 states:

Unless justice requires otherwise, no error in admitting or 

excluding evidence, or any other error by the court or a party, is 

ground for granting a new trial, for setting aside a verdict, or for 

vacating, modifying, or otherwise disturbing a judgment or order. 

At every stage of the proceeding, the court must disregard all 

errors and defects that do not affect any party’s substantial rights.

See also N.D.R.Ev. 103(a) (stating “[a] party may claim error in a ruling to 

admit or exclude evidence only if the error affects a substantial right of the 

party”).

[¶10] The Plaintiffs sued Morsette for negligence, claiming he failed to follow 

the law and rules of driving, failed to properly observe the roadway, failed to 

maintain proper control of his vehicle, failed to maintain the appropriate lane 

of travel, and operated a vehicle while heavily intoxicated. The Plaintiffs 

alleged Morsette’s negligence caused their damages. In his answer, Morsette 

admitted that he was negligent and that his negligence proximately and 

directly caused the Plaintiffs’ damages. Before trial, Morsette admitted 

liability for the “violent, high speed head-on collision” with Monson’s vehicle.

At trial, the district court stated to the jury:

Mr. Morsette has admitted fault in causing the accident, so the 

only issue for you to decide are whether the accident caused the 

alleged injury or injuries or losses and, if so, what is the proper 

amount of compensation, if any, that should be paid for the alleged 

injury or injuries or losses.
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[¶11] The Plaintiffs sought damages for their injuries under N.D.C.C. § 32-

03.2-04, relating to economic and noneconomic damages for wrongful death or 

injury to person:

In any civil action for damages for wrongful death or injury 

to a person and whether arising out of breach of contract or tort, 

damages may be awarded by the trier of fact as follows:

1. Compensation for economic damages, which are damages 

arising from medical expenses and medical care, 

rehabilitation services, custodial care, loss of earnings 

and earning capacity, loss of income or support, burial 

costs, cost of substitute domestic services, loss of 

employment or business or employment opportunities 

and other monetary losses.

2. Compensation for noneconomic damages, which are 

damages arising from pain, suffering, inconvenience, 

physical impairment, disfigurement, mental anguish, 

emotional distress, fear of injury, loss or illness, loss of 

society and companionship, loss of consortium, injury to 

reputation, humiliation, and other nonpecuniary damage.

In a wrongful death action, “the jury shall give such damages as it finds 

proportionate to the injury resulting from the death to the persons entitled to 

the recovery.” N.D.C.C. § 32-21-02.

[¶12] The Plaintiffs claim the method by which they were injured, or by which 

their child died, was relevant to the nature and extent of noneconomic damages 

they suffered. The Plaintiffs assert Morsette’s intoxication directly impacted 

their noneconomic damages because they suffered unique pain and mental 

anguish stemming from the fact that Morsette was intoxicated while driving.

[¶13] This Court has not addressed whether a defendant’s intoxication is 

relevant to a plaintiff’s damages when the defendant admits liability. Other 

courts have held evidence of intoxication is irrelevant and prejudicial when a 

defendant admits liability for an accident. GEICO Gen. Ins. Co. v. Dixon, 209 

So. 3d 77, 81 (Fla. Dist. Ct. App. 2017) (“In an automobile negligence case, 

when the defendant admits liability regarding the cause of the accident, 

evidence of the defendant’s sobriety is irrelevant and prejudicial.”); Swanson 
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v. Robles, 128 So. 3d 915, 917 (Fla. Dist. Ct. App. 2013); Parker v. Artery, 889 

P.2d 520, 524 (Wyo. 1995); Puent v. Dickens, 427 S.E.2d 340, 343 (Va. 1993)

(stating evidence of a defendant’s intoxication is not relevant to the 

determination of compensatory damages and should not be admitted when that 

is the only issue before the jury); Anderson v. Amundson, 354 N.W.2d 895, 899 

(Minn. Ct. App. 1984) (stating intoxication is irrelevant on the question of 

compensatory damages when liability has been admitted); Gelinas v. Mackey, 

465 A.2d 498, 500 (N.H. 1983); Obercon v. Glebatis, 454 N.Y.S.2d 46, 47 (N.Y. 

App. Div. 1982); Eubank v. Spencer, 203 Va. 923, 927, 128 S.E.2d 299, 302 (Va. 

1962).

[¶14] Arizona and Illinois have wrongful death statutes similar to N.D.C.C. 

§ 32-21-02, specifically the language stating that the jury shall award damages 

for injuries “resulting from the death.” See Ariz. Rev. Stat. Ann. § 12-613; 740 

Ill. Comp. Stat. Ann. 180/2. In Girouard v. Skyline Steel, Inc., 158 P.3d 255, 

260-61 (Ariz. Ct. App. 2007), the court held that under A.R.S. § 12-613, 

“compensation in a wrongful death action is limited to ‘injury resulting from 

the death.’” “[A] survivor may not recover for mental anguish resulting from 

the negligent acts of the defendant prior to the decedent’s death, and such 

evidence is not relevant to the issue of damages.” Girouard, at 261 (citing 

Mullen v. Posada Del Sol Health Care Center, 819 P.2d 985, 986 (Ariz. Ct. App.

1991)).

[¶15] In Hammond v. Sys. Transp., Inc., 942 F. Supp. 2d 867, 870 (C.D. Ill. 

2013), a negligent truck driver collided with another vehicle, killing two 

individuals. Similar to Morsette, the driver admitted liability but disputed the 

extent of damages. Id. In construing Illinois’ wrongful death act, the court

rejected the plaintiffs’ argument that evidence of the accident’s circumstances, 

including the defendant’s negligence, was relevant:

[T]he fact that the [plaintiffs] died suddenly in a serious vehicle 

accident may make it more probable that their next of kin 

experienced compensable grief and sorrow from the death. Thus, 

evidence concerning the circumstances and manner of the 

decedents’ deaths is relevant to the issue of damages, and will not 

be excluded under [Fed.R.Evid.] 402. This is not to say that all 
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evidence Plaintiff wishes to bring relating to the manner of death 

will be admissible. Rather, the Court simply concludes that it 

cannot exclude all evidence of the manner of death or the events 

surrounding the accident under Rule 402. The admissibility of 

particular pieces of evidence will be resolved as it arises. For 

example, under [Fed.R.Evid.] 403, the Court may exclude evidence 

of the circumstances of the decedents’ deaths that is more 

prejudicial than probative.

However, evidence of Defendant Austin’s negligence, such as 

the allegation that he violated rules limiting the hours he could 

work before resting, which resulted in him falling asleep and 

running a stop sign, is not relevant to Plaintiff’s claim. As 

indicated in the above statutory analysis, the grief, sorrow, and 

mental suffering is compensable only if it arises from the death, 

not from the negligence that preceded the death. Plaintiff’s 

argument that the children of the decedents experience increased 

grief because they think about the possibility that if only 

Defendant had abided by the applicable laws and rules, their 

parents would not have died, . . . only confirms the understanding 

that such emotional responses do not arise from the death and are 

thus not compensable. Therefore, any evidence of Defendant’s 

negligent acts or omissions leading up to the accident are 

irrelevant and will be excluded at trial.

Hammond, at 876.

[¶16] Here, the Plaintiffs claim that Morsette’s negligence, specifically his 

intoxication, was relevant to their damages. Lee and Cindy Zander testified 

Morsette’s intoxication caused their attitudes and social behaviors toward 

alcohol to change. They stated they no longer drink socially and have a difficult 

time socializing with others if alcohol is involved. Cindy Zander testified she is 

angry at Morsette because he never said he was sorry. Neither Monson nor the 

Renschler plaintiffs testified they suffered damages as a result of Morsette’s 

intoxication.

[¶17] Under N.D.C.C. § 32-21-02, damages are allowed for “injur[ies] resulting 

from the death.” Thus, the Zander and Renschler Plaintiffs may recover 

damages for the pain, suffering, mental anguish, and emotional distress
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resulting from the deaths of Taylor Goven and Abby Renschler. But any 

damages resulting from Morsette’s negligence preceding the deaths, including 

his intoxication, are not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-

04. As a result, evidence of Morsette’s intoxication is not relevant under 

N.D.R.Ev. 402. Because the Zander and Renschler Plaintiffs are precluded 

from recovering damages resulting from Morsette’s intoxication, we conclude 

the district court abused its discretion in admitting evidence of Morsette’s 

intoxication.

B

[¶18] Morsette contends the district court erred in failing to give a requested 

instruction to the jury. He argues this error, plus the court’s admission of 

evidence of his intoxication, resulted in an excessive jury verdict.

[¶19] Jury instructions should fairly inform the jury of the applicable law and 

must not mislead or confuse the jury. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 

656 N.W.2d 691. Under N.D.R.Civ.P. 51(c)(1), “[a] party who objects to a 

proposed instruction or the failure to give an instruction must do so on the 

record, stating distinctly the matter objected to and the grounds of the 

objection.” If a party fails to object, this Court “may consider a plain error in 

the instructions affecting substantial rights.” N.D.R.Civ.P. 51(d)(2); see also

Travelers Cas. Ins. Co. of Am. v. Williams Co. Constr., Inc., 2014 ND 160, ¶ 12, 

851 N.W.2d 164.

[¶20] A new trial, or a reduction of damages, may be granted if “excessive 

damages appear[] to have been awarded under the influence of passion or 

prejudice.” N.D.R.Civ.P. 59(b)(5); Blessum v. Shelver, 1997 ND 152, ¶ 37, 567 

N.W.2d 844. Passion is motivation by emotions, and prejudice means formation 

of an opinion without due knowledge. Wanner v. Getter Trucking, Inc., 466 

N.W.2d 833, 837 (N.D. 1991). “It is presumed that a damage verdict is proper, 

and this presumption is overcome only when the jury’s verdict is so excessive 

that it shocks the conscience of the court.” Blessum, at ¶ 37.

[¶21] The district court failed to give North Dakota Pattern Jury Instruction 

C-70.65, which precludes the jury from awarding damages to punish the 
8

defendant in the compensatory damages phase of trial. The instruction states: 

“You may not include in any award of damages to the Plaintiff any exemplary 

damages that you might add to punish the Defendant or to make an example 

of the Defendant for the public good or to prevent other wrongdoing. Those 

damages would be punitive rather than compensatory.”

[¶22] Morsette included the instruction in his requested jury instructions 

submitted the day before trial. However, when given the opportunity, he did 

not object to the district court’s final instructions which omitted his requested 

instruction. The district court stated its omission of Morsette’s requested 

instruction was unintentional.

[¶23] In their closing arguments in the compensatory damages phase of trial, 

the Plaintiffs stated that Morsette chose not to attend trial and has not 

apologized or shown remorse for his actions. The Plaintiffs stated:

It’s about time [Morsette] stood up and acted like a man and not a 

coward that he was on June 27th of 2015, and the coward he is 

today. . . . He won’t listen to the Judge, he won’t listen to the 

lawyers, he won’t listen to the cops, let’s see if he listens to you.

[¶24] Without Morsette’s requested jury instruction, the jury could have 

inferred that Morsette should be punished on the basis of the Plaintiffs’ closing 

arguments. Monson requested a minimum of $65 million in compensatory 

damages, and the Goven and Renschler plaintiffs each requested $18 million. 

The jury awarded $36 million each to the Goven and Renschler plaintiffs, and 

$170 million to Monson. In denying Morsette’s motion for a new trial, the 

district court stated, “Had the jury already award[ed] such exemplary damages 

improperly in the compensatory phase, they would not have awarded punitive 

damages [in the punitive damages phase of trial].” We disagree.

[¶25] “Damages in all cases must be reasonable.” N.D.C.C. § 32-03-37. The 

purpose of compensatory damages is to compensate a plaintiff for his or her 

injuries, not to punish the defendant for his or her wrongdoing. Despite the 

inherently emotional nature of the claim for mental anguish damages, on this 
9

record we can only conclude the jury was motivated by emotion and enhanced

its compensatory damages verdict to punish Morsette.

[¶26] After reviewing the entire record, we cannot conclude the district court’s 

errors were harmless. The admission of the irrelevant evidence of Morsette’s 

intoxication and the failure to instruct the jury they could not award punitive 

damages in the compensatory damages phase of trial were prejudicial errors

that affected Morsette’s substantial rights. We reverse and remand for a new 

trial on compensatory damages.

III

[¶27] Morsette asserts the district court erred in allowing the Plaintiffs to 

amend their complaint adding a claim for punitive damages. Morsette argues

there was insufficient evidence supporting a punitive damages claim.

[¶28] “A district court’s decision on a motion to amend a complaint will not be 

reversed on appeal unless the court abuses its discretion.” Gaede v. Bertsch, 

2017 ND 69, ¶ 21, 891 N.W.2d 760.

[¶29] The Plaintiffs moved to add a punitive damages claim against Morsette 

under N.D.C.C. § 32-03.2-11(1):

1

In any action for the breach of an obligation not arising from 

contract, when the defendant has been guilty by clear and 

convincing evidence of oppression, fraud, or actual malice, the 

court or jury, in addition to the actual damages, may give damages 

for the sake of example and by way of punishing the defendant. 

Upon commencement of the action, the complaint may not seek 

exemplary damages. After filing the suit, a party may make a 

motion to amend the pleadings to claim exemplary damages. The 

motion must allege an applicable legal basis for awarding 

1 Under N.D.C.C. § 32-03.2-11(9), punitive damages may be awarded against 

an intoxicated driver who causes an accident resulting in bodily injury if 

certain conditions are satisfied. The parties acknowledge subsection 9 does not 

apply in this case.
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exemplary damages and must be accompanied by one or more 

affidavits or deposition testimony showing the factual basis for the 

claim. The party opposing the motion may respond with affidavit 

or deposition testimony. If the court finds, after considering all 

submitted evidence, that there is sufficient evidence to support a 

finding by the trier of fact that a preponderance of the evidence 

proves oppression, fraud, or actual malice, the court shall grant 

the moving party permission to amend the pleadings to claim 

exemplary damages.

[¶30] The Plaintiffs alleged Morsette’s conduct was malicious and oppressive. 

They claimed his guilty plea to criminal vehicular homicide established his 

malicious and oppressive conduct. The Plaintiffs argued Morsette intended to 

drink himself to a level of intoxication over three times the legal limit and drive 

on the wrong side of the road. The district court allowed the claim, finding the 

Plaintiffs “met the threshold of malice necessary to amend the complaint.” The 

court found “if the alleged conduct is proven by the plaintiff, [Morsette] was 

reckless.”

[¶31] “Actual malice is the actual state or condition of the mind of the person 

who did the act.” Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 754 (N.D. 1989).

“Actual malice is malice in fact, in which there is actually present an improper 

motive implying the purpose and desire to injure. [A]ctual malice [means]

actual spite and ill will toward plaintiff.” Neidhardt v. Siverts, 103 N.W.2d 97, 

102 (N.D. 1960). “Actual malice” is defined as “an intent with ill will or 

wrongful motive to harass, annoy, or injure another person.” McHugh v.

Jacobs, 450 F. Supp. 2d 1019, 1022 (D.N.D. 2006) (citing North Dakota Pattern 

Jury Instruction C-72.16).

[¶32] The district court misapplied the law in finding the Plaintiffs met the 

necessary threshold of malice to add a claim for punitive damages. The court 

found that “if the alleged conduct is proven by the plaintiff, [Morsette] was 

reckless.” The law requires a finding of more than reckless conduct; it requires

sufficient evidence to support a finding that a preponderance of the evidence 

demonstrates conduct with a state of mind evincing an intent to harm or injure 

another person. N.D.C.C. § 32-03.2-11(1). The Plaintiffs argued Morsette

[acted maliciously because he] intended to drink and drive and as a result he 
11

killed Goven and Renschler and seriously injured Monson. However,

“[i]ntentional or willful conduct is not synonymous with oppressive, fraudulent 

or malicious conduct.” Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 643 

(N.D. 1984). There was no evidence indicating that Morsette acted with ill will 

or wrongful motive and intended to injure Monson, Goven, Renschler, or any 

other person. Although Morsette’s conduct while intoxicated can be 

characterized as grossly negligent or extremely reckless, there are no special 

circumstances, such as an intent to injure or personal ill will toward the 

Plaintiffs, to support a finding of actual malice.

[¶33] We conclude the court abused its discretion by allowing the Plaintiffs’ 

claim for punitive damages against Morsette.

IV

[¶34] The amended judgment is reversed and remanded for a new trial on the 

Plaintiffs’ compensatory damages.

[¶35] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte