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Burdick v. Interstate Power And Light Co.

Court of Appeals of Iowa

October 25, 2017


         Appeal from the Iowa District Court for Kossuth County, Nancy L. Whittenburg, Judge.

         The plaintiffs appeal the district court's orders granting the defendant's posttrial motion for judgment notwithstanding the verdict, or alternatively, a new trial. REVERSED AND REMANDED.

          David J. Siegrist of Siegrist & Jones, P.C., Britt, and Thomas W. Lipps of Peterson & Lipps, Algona, for appellants.

          Mark A. Roberts and Dawn M. Gibson of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellee.

          Heard by Vogel, P.J., and Potterfield and Mullins, JJ.


         Jeffrey Burdick Sr., Wanda Burdick, and Jeffrey Burdick Jr. appeal the district court's posttrial order that vacated the jury's verdict in favor of the Burdicks. The district court granted Interstate Power & Light Company's motion for judgment notwithstanding the verdict or, alternatively, granted its motion for new trial. The Burdicks assert the district court should not have granted the motions because there was sufficient evidence introduced at trial to support the jury's award of damages. Because we agree there was sufficient evidence of damages from which the jury could have approximated the Burdicks' lost profits, we reverse the district court's ruling on Interstate's posttrial motions.

         I. Background Facts and Proceedings.

         In October 2013, the Burdicks filed suit against Interstate alleging Interstate's electrical system caused damage to the Burdicks' dairy operation. The Burdicks alleged Interstate was negligent in its maintenance of the system, which allowed stray voltage to come into contact with their dairy herd causing decreased milk production and a reduction in breeding. The Burdicks also asserted a nuisance claim. The case proceeded to an eight-day jury trial in December 2015. The jury returned a verdict in favor of the Burdicks, concluding Interstate was 80% negligent and assigning 20% fault to the Burdicks.[1] The jury awarded damages in the amount of $500, 000. The court entered judgment against Interstate for $400, 000 ($500, 000 x 80%) on the negligence claim.

          Thereafter, Interstate filed a posttrial motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Interstate alleged the Burdicks failed to offer evidence at trial from which the jury could calculate damages for lost profits. Alternatively, Interstate asserted it was entitled to a new trial based on its belief the verdict was the result of a jury compromise in light of the fact it bore no relationship to the evidence presented at trial. The Burdicks resisted the motion asserting the jury could have reasonably concluded they had no expenses related to the lost milk production because the jury could have believed the Burdicks had already absorbed all expenses. The district court granted Interstate's motion concluding:

Plaintiffs did not present significant evidence of their anticipated revenues. Instead, they only presented an estimate of lost milk and a published figure for the average price of milk per year. There was no record introduced at trial to support the estimated lost milk production. Plaintiffs provided no testimony or exhibits which explained the calculation of the estimated lost milk or average price of milk. Additionally, Jeffrey Burdick Sr., in testifying on the loss in milk production, used a published average milk price, but no actual lost production and no actual price that Plaintiffs were being paid. There was no explanation as to how the estimated average price of milk related to Plaintiffs' actual price during the years in question. Plaintiffs only alleged that they were supposed to produce a certain quantity of milk, which quantity was not achieved, that milk at the time of their injury was, in general, sold at an average price. Such a presentation fails to provide the jury with the resources necessary to determine, with a reasonable degree of certainty, what Plaintiffs' gross revenues were for the relevant time period.
Perhaps a greater omission was Plaintiffs' lack of foundation or argument for the jury to determine what the variable expenses were from the deprivation of milk production. No testimony or exhibits were provided about the actual costs Plaintiffs incurred or avoided due to the alleged change in production. In Plaintiffs' Brief in Resistance, Plaintiffs argue that it was possible they had no avoided costs. However, such a contention goes against the testimony by their own witness-Jeffrey Burdick Sr.-and the typical operations of a business. If there is less production, costs associated with the profit from the sale of the produced goods are typically affected in some way. But Plaintiffs presented no evidence that would indicate these added or avoided costs existed. Plaintiffs entirely failed to address how their alleged loss of milk production affected milking costs, feeding costs, transportation costs, or the costs of veterinary services. While Plaintiffs now contend the evidence presented at trial could be implied toward a finding that all of these costs were already paid and therefore unavoided, Plaintiffs testified they paid for the transportation of their milk 100 miles to a dairy processing plant, bought some feed, and used veterinary services but never testified to the specific dollar costs of those expenses or how lack of milk production affected those costs. The fact that Plaintiffs produced the majority of their own feed and supplied their own land and labor does not provide a basis for a jury to determine Plaintiffs already absorbed all costs which would typically exist-and which they may have partially avoided-in the production of milk on a dairy farm.
Plaintiffs seem to argue in their Resistance that they provided a sufficient basis for a jury determination of damages based on Jeffrey Burdick Sr.'s testimony of lost milk. However, as discussed above, the determination of lost profits consists of the subtraction of variable expenses from revenues. While lost milk production does inform the determination of lost revenue, it does not account for the entirety of the calculation of lost profits. Plaintiffs failed to provide a sufficient evidentiary basis for the jury to calculate with any degree of reasonable certainty the actual amount of Plaintiffs' lost profits resulting from Defendant's alleged negligence. In making the determination that Plaintiffs' were entitled to $500, 000 in lost profits, the jury most likely confused lost production with lost profits. Such a determination was contrary to the jury instructions on damages under negligence; therefore, Defendant's Motion for JNOV should be sustained.

         The district court also went on to conclude, alternatively, Interstate was entitled to a new trial based on the fact the jury's award lacked evidentiary support and indicated "an unaided and uneducated guess at how much profit the dairy was likely to realize out of their lost milk production revenue." The court vacated the judgment entered in ...

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