A personal injury trial with an empty chair where the defendant should have sat has resulted in a $66,711 verdict from a Scott County jury last month.

The case was a fairly straightforward auto accident and a resulting soft tissue injury to the plaintiff’s neck and back. However, it took five years, a trip to the Court of Appeals and $15,000 to bring Hornberger v. Wendel to trial. The plaintiffs’ lawyer, Kristin Naros of Minneapolis, says the case shows why Minnesota needs a statute authorizing direct actions against insurance companies.

“It’s not right to put an injury victim through the litigation wringer like this,” Naros said. “It would ease the burden on the courts and the victim to have the insurance company the named defendant from the outset.”

Hornberger v. Wendel was complicated by the fact that the defendant could not be served. Naros proceeded initially with service by publication under Minnesota Rule of Civil Procedure 4.04, but the Court of Appeals in 2009 said the service was insufficient. The court said that the District Court had to make findings that the party had departed the state or remained concealed within the state with intent to avoid service, and it was not enough to say that the plaintiff’s lawyer believed that to be true.

That seemingly requires the plaintiff to produce an affidavit from somebody who has firsthand knowledge of why the defendant left the state, Naros said. “If I could find that person I could find the defendant so what is the purpose of the [service by publication] rule? If that is the law is it a strong argument for a direct action against the insurance company,” she said.

So Naros proceeded to find the defendant. “I just happen to know a bounty hunter,” she said. She refiled the case and began again, having accomplished personal service in California.

But being served was the first and last time the defendant had a handprint on the case. He did not respond to discovery requests or appear for a deposition. Eventually Naros moved for a default judgment and an order to compel discovery.

At that point, the attorney for the defendant, William Strifert, admitted liability on behalf of his client. (The Court of Appeals had said in its 2009 opinion that the attorney hired by the insurance company represents the defendant as a matter of law, even if the defendant doesn’t participate in the case.)

Strifert conceded liability to avoid prejudice to the plaintiff, he said. “It was only fair to the plaintiff to admit liability,” he told Minnesota Lawyer.

Due to that admission, the trial court denied the motion for a default judgment. “I was told by the court I would have to try the case to an empty chair,” Naros said.

“It seems to me that negates the default judgment rule in Rule 37,” she said. The rule provides, in pertinent part, that as a sanction for a discovery violation the court may issue an order “rendering a judgment by default against the disobedient party.”

So Naros proceeded to trial without a defendant but the jury was never told why there was an empty chair.

“In a pretrial ruling the judge prohibited me from making any kind of a big deal about the defendant’s absence. Not only do we have an empty chair, we can’t talk about why,” she said.

“It’s just not right. Everybody’s uncomfortable about not telling the truth to the jury,” she added.

However, the plaintiff still got a good result at trial, Naros said. The verdict was more than four times the Rule 68 offer, she said.

The defense put on one witness, an independent medical examiner, who testified that the plaintiff’s injuries were pre-existing.

Naros said that a cursory look at the medical records would say that the injuries were pre-existing. But the plaintiff’s witness, Dr. Kris Huber, the treating chiropractor, provided a good explanation of how the new injury added to the old one, Naros said. “He had true caring and compassion for his patient. He spent a day and a half at court.”

The plaintiff had large medical bills and made a good witness, Strifert said. The jurors could have drawn a negative inference from the defendant’s absence, even though they were instructed not to, he said. “Kris Naros did a very good job with the case, and she got a very good result,” he said.

“The important thing is,” Naros said, “if you hang in there, you reach the right outcome.”

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