This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-2040

                                    Robert Shane Belzer,
                                        Appellant,

                                             vs.

                       American Family Mutual Insurance Company,
                                      Respondent.

                                  Filed September 8, 2015
                                         Affirmed
                                      Schellhas, Judge

                               Hennepin County District Court
                                  File No. 27-CV-13-5671

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellant)

Mark K. Hellie, Regional Legal Staff Counsel, Eden Prairie, Minnesota (for respondent)

         Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the denial of his motion for a new trial. We affirm.

                                           FACTS

         Appellant Robert Shane Belzer commenced a lawsuit against his automobile

insurance company, respondent American Family Mutual Insurance Company, to collect
underinsured motorist benefits for injuries that he allegedly sustained in an automobile

accident. The lawsuit proceeded to a jury trial. During a break in the trial, Belzer’s

counsel observed one of the jurors speaking to an American Family insurance adjuster

and brought this to the attention of the district court.1 The court questioned the juror

about the incident in chambers and in the presence of the parties’ counsel. The juror

explained that he had spoken to the insurance adjuster about the difficulty in opening the

swinging gate separating the front of the courtroom from the gallery. The court

determined that the incident was not prejudicial and took no further action, and Belzer’s

counsel did not ask for specific action.

       The jury determined that approximately $7,600 would compensate Belzer fairly

and adequately for past pain, disability, emotional distress, health care expenses, and

diagnostic testing and that no sum was needed to compensate him for future pain,

disability, emotional distress, or health care expenses. Based on the jury’s verdict, the

district court concluded that American Family was not liable to pay Belzer underinsured

motorist benefits. Belzer moved for a new trial, arguing that the juror’s contact with the

insurance adjuster “put a cloud upon the whole trial” that “cannot be cured without a new

trial or a removal of that juror.” The court determined that the contact was harmless and

denied the motion.

       This appeal follows.




1
  The insurance adjuster sat at counsel table with American Family’s counsel throughout
the trial.

                                            2
                                      DECISION

         A new trial may be granted for, among other things, “[i]rregularity in the

proceedings of the court, referee, jury, or prevailing party . . . whereby the moving party

was deprived of a fair trial” or “[m]isconduct of the jury or prevailing party.” Minn. R.

Civ. P. 59.01. “The decision to deny a motion for a new trial rests in the discretion of the

district court, and [appellate courts] will reverse that decision only for a clear abuse of

that discretion.” Frazier v. Burlington N. Santa Fe Corp., 

 (Minn.

2012).

         “[P]rejudice is the primary consideration in determining whether to grant a new

trial,” and “the refusal to grant a new trial will be reversed only if misconduct is so

prejudicial that it would be unjust to allow the result to stand.” Torchwood Props., LLC v.

McKinnon, 

 (Minn. App. 2010) (quotations omitted); see also

Leuba v. Bailey, 

, 207–08, 

 (1957) (stating that there is a

“well-established rule that motions for a new trial should be granted cautiously and

sparingly and only in the furtherance of substantial justice”). Whether juror misconduct

was prejudicial is a question of fact, the resolution of which “rests primarily upon the trial

court.” Briggs v. Chicago Great W. Ry. Co., 

, 

(1957) (stating further that “a new trial should not be granted for such misconduct if the

trial court is reasonably certain that no prejudice resulted”). The party moving for a new

trial has the burden of demonstrating prejudice. Cf. Pajunen v. Monson Trucking, Inc.,

 (Minn. App. 2000) (“At a Schwartz hearing, the movant bears the




                                              3
burden of demonstrating actual misconduct and prejudice.”), review denied (Minn.

Aug. 15, 2000).

       Here, the district court questioned the juror about his contact with the insurance

adjuster and heard the juror’s explanation of the conversation that occurred. The court

found that the juror and the insurance adjuster had spoken briefly about the difficulty in

opening the swinging gate separating the front of the courtroom from the gallery. The

court determined that the discussion did not result in prejudice to either party and was

harmless.

       At oral argument, Belzer asked this court to establish a bright-line rule mandating

a new trial whenever there is contact between a juror and a party. We decline to establish

such a rule; caselaw requires a showing of prejudice. See Lake George Park, L.L.C. v.

IBM Mid-Am. Emps. Fed. Credit Union, 

 (Minn. App. 1998)

(stating that this court is an error-correcting court and is without authority to change the

law), review denied (Minn. June 17, 1998). We conclude that the district court did not

abuse its discretion by determining that the contact between the juror and the insurance

adjuster was not prejudicial and by denying Belzer’s motion for a new trial.

       Affirmed.




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