author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Edward Uriah ROBERTS, Appellant.
    No. C8-01-1430.
    Court of Appeals of Minnesota.
    Sept. 24, 2002.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul; and Ted Alliegro, Chisago County Attorney, Center City, for respondent.
    John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

LANSING, Judge.

This appeal from felony convictions raises two jury-composition issues. The first issue involves the number of jurors required by the Minnesota Constitution and permitted by the Minnesota Rules of Criminal Procedure. The second involves the method by which a jury can be reduced to a number less than that selected for trial. We conclude that a defendant’s waiver of his right to a twelve-person jury and agreement to allow an alternate to deliberate is not constitutional or plain error. But it is plain error for the district court, without the defendant’s personal agreement, to excuse a juror after deliberations have begun. We therefore reverse and remand for a new trial.

FACTS

The state charged Edward Roberts with second-degree intentional murder, aiding and abetting intentional second-degree murder, and aiding and abetting first-degree assault. In the jury selection proceedings, the district court empaneled twelve jurors and two alternates. Before the jury was sworn, the court, with the consent of all parties, discharged one of the jurors because of a health problem. The trial proceeded with twelve jurors and one alternate.

At the conclusion of the charge conference, the district court proposed to trial counsel that the one remaining alternate be allowed to deliberate with the twelve jurors. The court specified that conviction would still require a unanimous verdict. Trial counsel agreed on the record to allow the alternate to deliberate. Defense counsel, with Roberts present, stated he had discussed this issue with Roberts, and Roberts was agreeable to letting the alternate deliberate. Defense counsel stated: “The record should reflect that I did confer with Mr. Roberts about that, and that was his wish as well. Is that right, Mr. Roberts?” Roberts responded, “Yes.”

Before instructing the jury, the district court informed the jurors that both counsel had agreed that the alternate would deliberate with the other jurors. The court told the jury, “[y]ou can ignore the whole concept of an alternate. You are all jurors to make the decision. And if any time before you start your deliberations, or even during the deliberations, a juror should become sick or something, fine, that juror can be excused and the remaining twelve would be the deciding jurors.”

The jury retired to begin deliberations in the afternoon. After deliberating three hours, the jury told the bailiff that they wanted to recess for the evening and return the next morning. One of the jurors sent a message to the court, through the bailiff, asking to be excused because of a commitment in Texas that required him and his wife to leave town the next morning. The district court assembled the jurors in the courtroom without trial counsel present. The court stated that the prosecution had no objection to discharging the juror but defense counsel had not yet responded to the request. The court indicated that defense counsel wanted to think about it, would probably agree, but likely wanted first to talk to his client. The court, apparently believing that it was necessary to make a decision and that the twelve remaining jurors could proceed without the additional juror, granted the juror’s request to be discharged.

The twelve remaining jurors returned to continue deliberating the next morning. After five hours the jury returned a verdict of guilty on aiding and abetting second-degree murder and aiding and abetting first-degree assault. Defense counsel did not object to the juror’s discharge until after the trial.

ISSUES

I. Notwithstanding the stipulation of counsel and the personal waiver of the defendant, did the district court violate the Minnesota Constitution and the Minnesota Rules of Criminal Procedure by allowing the alternate to participate in the jury deliberations, thus increasing the size of the jury to thirteen?

II. Does the district court’s discharge of a juror during deliberations, without the defendant’s consent, result in reversible error?

ANALYSIS

On appeal, Roberts raises two claimed errors in jury composition that he did not object to at trial. Failure to object to an alleged error in the district court generally constitutes waiver of the right to raise the issue on appeal. State v. Vick, 632 N.W.2d 676, 684-85 (Minn.2001) (applying waiver standard to evidentiary error). But an appellate court may still consider a waived issue if it is (1) error, (2) that is plain, and (3) the error affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); Minn. R.Crim. P. 31.02 (plain error rule). If the defendant establishes plain error that affects substantial rights, then the appellate court assesses whether it should address the error to ensure fairness and the integrity of the judicial proceeding. Id. Plain-error analysis is not completely consonant with affirmative waiver requirements, but its application has not been specifically disputed in this appeal, and the facts support a claim that an objection could have been interposed in court in the first instance and, in the second instance, when the attorney was contacted by phone.

I

In 1970, the United States Supreme Court determined that a twelve-person jury is not an indispensable component of the Sixth Amendment’s jury-trial guarantee. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Following the decision in Williams, the Minnesota legislature amended Minn.Stat. § 593.01 (1969) to provide for a six-person jury in misdemeanor cases. 1971 Minn. Laws ch. 917, § 1. In 1988, our supreme court interpreted Article I, section 6 of the Minnesota Constitution to guarantee a jury of twelve persons in all criminal prosecutions and declared Minn.Stat. § 593.01 (1986) unconstitutional. State v. Hamm, 423 N.W.2d 379 (Minn.1988). Later in 1988, the people of Minnesota amended the constitution to provide for a twelve-person jury for felonies and to permit the legislature to specify the number of jurors, not less than six, in all other criminal prosecutions.

The Minnesota Rules of Criminal Procedure, promulgated by the Minnesota Supreme Court, provide that a defendant may waive his or her right to the number of jurors required by law and stipulate that the jury shall consist of a lesser number. Minn. R.Crim. P. 26.01, subd. 1(4). The court may not approve such a stipulation unless the defendant, personally in writing or orally on the record, agrees to trial by the reduced number of jurors. Id. Roberts argues that because the rules of criminal procedure do not specifically provide for stipulation to a number greater than that provided by law, the thirteen-person jury was a violation of his jury-trial guarantee under the state constitution.

We start from the fundamental proposition that in a felony prosecution the Minnesota Constitution provides for a jury of twelve persons, no more and no fewer. Minn. Const, art. I, § 6 (“[i]n all prosecutions of crimes defined by law as felonies, the accused has the right to a jury of 12 members”). But fundamental constitutional rights can be waived if the waiver is knowing, intelligent, and voluntary. State v. Ross, 472 N.W.2d 651, 653-54 (Minn.1991) (upholding knowing and voluntary waiver of jury trial and agreement to. bench trial); see also United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (noting defendant who knowingly and voluntarily pleads guilty cannot have his conviction vacated on grounds that he ought to have had a trial).

Under the Minnesota Rules of Criminal Procedure, the constitutional right to a jury of a minimal number is waivable. Minn. R.Crim. P. 26.01,'subd. 1(4). The rules establish that the right to a specific number is an important right because the procedures that accompany the waiver are formal: the trial attorneys must stipulate, the defendant must personally agree in writing or orally on the record, and the judge must permit the variance. In Roberts’s trial, the district court insured that these procedures were followed: the trial attorneys stipulated, Roberts stated his agreement orally on the record, and the court permitted it. The only deviation from Minn. R.Crim. P. 26.01, subd. 1(4), is that the waiver procedure was used to add a juror rather than subtract a juror to the number permitted by law.

In our view, it is significant that Minn. R.Crim. P. 26.01, subd. 1(4), does not prohibit the court from approving a stipulation for more than the number of jurors provided by law — it simply does not address it. It is reasonable that the drafters of the criminal rules would include a specific provision to deal with jury attrition. Alternate jurors who have not replaced a principal juror are discharged after the jury retires to consider its verdict. Minn. R.Crim. P. 26.02, subd. 8. A juror’s inability to perform a juror’s duties after the jury retires for deliberation results in a mistrial unless the parties, with the personal agreement of the defendant, stipulate to a lesser number than that selected for trial. Id. Thus, to avoid the time and expense of retrying a case, a procedure for juror attrition is necessary. But there is no equivalent practical necessity to expand the jury; therefore, it is not unusual that the ■ rules do not include a provision for waiver to allow for a larger number of jurors than the number provided by law.

Furthermore, waiver is a process that is not created by the constitution or the rules of criminal procedure. In general, the constitution creates or recognizes rights and the criminal rules provide procedures for the assertion or protection of rights. Waiver, on the other hand, is the voluntary relinquishment of a known right. Consequently, the failure' of either document to provide that a specific right or procedure is waivable is not likely to be determinative. The rules provide, instead, for procedural safeguards to ascertain that waiver is voluntary. Ross, 472 N.W.2d at 653 (purpose of district court’s inquiry of defendant it to" learn whether waiver is knowing and voluntary). The nature of the particular right defines the method of waiver. See Olano, 507 U.S. at 733, 113 S.Ct. at 1777, 123 L.Ed.2d 508. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” Id.

Although Minnesota .appellate courts have not addressed the issue of a consensual thirteen-person jury, this court has previously indicated that the waiver procedures in Minn. R.Crim. P. 26.01, subd. 1(4), would apply to an agreement to allow a greater number of jurors to deliberate. State v. Washington, 632 N.W.2d 758, 762 (Minn.App.2001) (declining to find waiver of right to six-person jury when defendant did not personally consent to a seven-person jury). The issue in Washington is comparable to the issue in this case because the district court in Washington, by allowing seven jurors rather than six, allowed a larger jury than is provided by law. Id.

For these reasons, we conclude that it was not plain error to allow thirteen jurors to deliberate when trial counsel stipulated to this number and-the defendant personally agreed. But even if a thirteen-member jury could be considered plain error, Roberts has failed to show that allowing thirteen jurors, rather than twelve jurors, affected his substantial rights. See Griller, 583 N.W.2d at 741 (defendant must demonstrate that plain error affected substantial rights by showing that error was prejudicial and affected outcome of case).

We have previously decided that the failure to discharge an alternate juror is not so serious that in every situation it requires automatic reversal. State v. Crandall, 452 N.W.2d 708, 710-11 (Minn.App.1990). Roberts has not demonstrated any prejudice in allowing thirteen jurors to deliberate. Roberts’s attorney affirmatively assented to the procedure, Roberts consented to the procedure, and it was stipulated that all thirteen jurors would have to agree to Roberts’s guilt before he could be convicted. As a federal court observed in similar circumstances, “[a]ll other things being equal, it cannot possibly be less difficult for the government to get thirteen jurors to agree that a defendant is guilty beyond a reasonable doubt than it is to get twelve to so agree.” United States v. Myers, 280 F.3d 407, 412 (4th Cir.2002); see also Ballew v. Georgia, 435 U.S. 223, 234, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978) (Justice Blaekmun observing that statistical studies suggest that the risk of convicting an innocent person rises as the size of the jury diminishes); United States v. Reed, 790 F.2d 208, 210 (2d Cir.1986) (stating that “we are satisfied that there is no likelihood whatever that a thirteen-man jury would convict more readily than would a twelve man jury”).

Finally, Roberts has failed to show that the jury size affected the fairness, integrity or public reputation of the proceeding. See Griller, 583 N.W.2d at 740 (identifying fairness and integrity as basis for appellate court to exercise discretionary review). The procedure followed by the district court in this case, while perhaps unorthodox, was advanced with apparent good intentions and assented to by the defendant and his.attorney in open court. Despite the questionable prudence of the procedure, the fairness or integrity of the proceeding was not compromised by the district court’s action. United States v. Bendek, 146 F.3d 1326 (11th Cir.1998) (rejecting plain-error argument for permitting thirteen-member jury).

Even though we conclude that the departure did not result in plain error that requires reversal, we caution against the jury selection process that varies from the process provided by the rules. Departures from the norm of a jury of twelve on an ad hoc basis invite appeals and generally create more problems than they solve. Courts and parties should not readily agree to allow an alternate to participate in the deliberation of the verdict even when the alternate has “stuck through” a long trial. See Reed, 790 F.2d at 209-10.

II

Roberts also claims it was plain error affecting substantial rights to dismiss one juror after deliberations had begun and permit the remaining twelve jurors to reach a verdict, without obtaining his personal consent. This argument is directly addressed by the Minnesota Rules of Criminal Procedure. Rule 26.02, subd. 8, governing alternate jurors, directs that the district court shall declare a mistrial if a juror becomes unable to serve or is disqualified from serving after deliberations have begun, “unless the [defendant agrees personally in writing or orally on the record] that the jury shall consist of a lesser number than that selected for the trial.” Minn. R.Crim. P. 26.02, subd. 8; Minn. R.Crim. P. 26.01, subd. 1(4).

It is undisputed that neither Roberts nor his defense counsel agreed to continue deliberations with the remaining twelve jurors. Because the rules impose an affirmative duty to obtain the defendant’s personal waiver and the trial attorneys’ stipulation, the failure to comply with the rule is plain error.

The more difficult issue is whether Roberts can establish that the error prejudiced the outcome of his trial. See Griller, 583 N.W.2d at 741 (on third prong of plain-error analysis, defendant bears a “heavy burden” of persuasion to'show “the error was prejudicial and affected the outcome of the case”). In previous cases addressing jury irregularities we have held that errors affecting jury deliberations may give rise to a presumption of prejudice that, if unrebutted by the state, would satisfy the third prong of the Griller plain-error analysis. See Crandall, 452 N.W.2d at 711 (recognizing a rebuttable presumption of prejudice when alternate inadvertently joined the regular jury members for the first 20 minutes of deliberations); see also State v. Cox, 322 N.W.2d 555, 558-59 (Minn.1982) (statements of a court official made in the presence of the jury that affected the merits of. the case created a rebuttable presumption of prejudice); State v. Watkins, 526 N.W.2d 638, 640-41 (Minn.App.1995) (accord); State v. Washington, 632 N.W.2d 758, 760-61 (Minn.App.2001) (applying presumption' of prejudice when alternate was allowed to deliberate to verdict without knowledge or consent of defendant). We see no reason to depart from that approach in this case.

First, the criminal rules requirement for stipulation by trial counsel and personal waiver by the defendant suggests that some defects bearing on the jury’s deliberative function are subject to reversal regardless of whether prejudice can be shown. Reconstituting a jury in the midst of jury deliberations presents substantive fair-trial and due process problems, and even when authorized, should be used sparingly. People v. Ford, 145 Misc.2d 308, 546 N.Y.S.2d 313, 316 (1989). Rule 26.02, subd. 8, mandates that the failure to obtain the stipulation of the parties and the defendant’s personal waiver requires a mistrial. That rule operates as a presumption of prejudice. Second, discharging the juror may have violated Roberts’s constitutional right to a unanimous verdict by the number of jurors selected for trial. See Hamm, 423 N.W.2d at 383-386 (noting the key components of the right to a jury trial are “number, impartiality, and unanimity”). The fact that the jurors in Roberts’s trial knew that one juror could request discharge after deliberations had begun without triggering a mistrial created a substantial risk that a lone dissenting juror might feel pressured to — or might voluntarily — seek to be discharged in order'to break a deadlock. The seriousness of this risk would also warrant a presumption of prejudice.

The state argues that Roberts should be required to make a “specific showing” that the outcome of his trial was affected by the discharge of the thirteenth juror and cites the United States Supreme Court’s decision in Olano in support of that argument. We are not persuaded that Olano should change our analysis. First, the facts in Olano are significantly different. The two alternate jurors in Olano were allowed, with the knowledge of defense counsel, to observe the jury deliberations, but were instructed not to participate in any way. 507 U.S. at 737-39, 113 S.Ct. at 1779-80, 123 L.Ed.2d 508 (discussing several past decisions involving irregularities in jury deliberations). The Supreme Court concluded that no evidence suggests that the alternates had participated in any way and the mere presence of alternate jurors did not entail a significant risk of “chill” that would justify a presumption of prejudice. 507 U.S. at 740-41, 113 S.Ct. at 1781, 123 L.Ed.2d 508. We think it significant that in Roberts’s trial the thirteenth juror fully participated in the deliberations before he was discharged.

Because we are reversing and remanding for a new trial, we do not address the remaining issues raised in Roberts’s primary brief. We have carefully examined the issues raised in Roberts’s pro se brief and have found no argument that would warrant reversal other than those already addressed.

DECISION

The district court did not violate the Minnesota Constitution or commit other plain error by permitting the alternate to deliberate with the twelve other jurors when the trial attorneys stipulated to the increased number of jurors and the defendant consented on the record. But it was plain error affecting substantial rights to dismiss one of the jurors after deliberations had begun without the personal consent of the defendant. We reverse and remand for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    ILLINOIS FARMERS INSURANCE COMPANY, Respondent, v. Stephanie Lynn NASH, Appellant.
    No. CX-02-290.
    Court of Appeals of Minnesota.
    Sept. 24, 2002.

      Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis; and Richard J. Newcome, Richard N. Newcome & R.J. Newcome, P.A., St. Paul, for appellant.
    Carrie I. Hansen, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, for respondent.
    Considered and decided by RANDALL, Presiding Judge, SCHUMACHER, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Respondent insurer brought this sub-rogation action against appellant, an un-derinsured tortfeasor, to obtain reimbursement of the underinsured benefits respondent had paid to its insured. The parties brought cross-motions for summary judgment. The district court granted respondent’s motion and denied appellant’s motion. Because we conclude that respondent was not entitled to bring a subrogation action, we reverse the summary judgment and remand for dismissal.

FACTS

Appellant Stephanie Nash injured Catherine Walker Owusu (Owusu ), an insured of respondent Illinois Farmers Insurance Co., in an automobile accident. Owusu brought an action against appellant. Although Owusu served a Malmin notice of the action on respondent, respondent chose not to intervene.

In December 2000, the district court entered judgment for $62,496 in favor of Owusu against appellant. Because appellant’s policy limit was $50,000, respondent paid Owusu the remaining $12,496 of the judgment in underinsured motorist’s benefits. In April 2001, Owusu executed and appellant filed a satisfaction of judgment. In May 2001, respondent’s attorney wrote appellant’s attorney:

Please accept this letter as notification that [respondent,] as the underinsured motorist carrier, has a ⅜ * ⅜ right for expenses paid in this matter. Accordingly, [respondent] requests reimbursement in the amount of $12,496.00 from [appellant].

Appellant declined to reimburse respondent, and respondent brought this subro-gation action against appellant.

ISSUES

1. When appellant filed the satisfaction of judgment, had appellant received notice from respondent that respondent intended to exercise its subrogation right?

2. Did the satisfaction of judgment defeat respondent’s subrogation right?

ANALYSIS

Standard of Review

On an appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties agree that the issue before this court, whether respondent has a right of subrogation, is a question of law. Therefore, our review is de novo. See Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992) (rehearing denied 21 Sept. 1992).

1. Tortfeasor’s Right to Notice

[U]pon payment of a loss an insurer is entitled to pursue those rights which the insured may have against a third party whose negligence or wrongful act caused the loss.

Travelers Indemnity Co. v. Vaccari, 310 Minn. 97, 99, 245 N.W.2d 844, 846 (1976). It is undisputed that respondent paid Owusu $12,496 in underinsured motorist benefits, an amount that Owusu had a right to recover from appellant, the tort-feasor who caused Owusu’s loss. Therefore, in equity, respondent became entitled to pursue Owusu’s right to recover the amount of that payment from appellant, i.e., to subrogate. It is undisputed that after Owusu received full payments from respondent and from appellant’s insurer, appellant’s attorney obtained and filed a satisfaction of judgment.

Whether a satisfaction of judgment defeats a subrogation right is a case of first impression, but the law on whether a settlement defeats a subrogation right is established.

[W]here a tortfeasor and his liability insurer willfully disregard notice of the subrogation claim of the injured person’s insurer and enter into a separate settlement with the injured person, such a settlement does not defeat his insurer’s subrogation rights.

Id. at 103, 245 N.W.2d at 848. “Willfully disregard” has been construed in the context of subrogation.

In order to find willful disregard of an insurer’s subrogation interest, some intent to deceive and defraud must be present. Thus, the notice [of that interest] must be actual; a tortfeasor cannot be deemed to have constructive notice, which arises as an inference or presumption of law and not from the parties’ intent or conscience.

Group Health, Inc. v. Heuer, 499 N.W.2d 526, 529 (Minn.App.1993) (quotation and citation omitted). The question becomes whether appellant’s attorney had actual notice of respondent’s intent to exercise its subrogation claim when he filed the satisfaction of judgment.

Actual notice may be proved by direct or circumstantial evidence. Formal, written express notice was not given in this case. Nor is there any other direct evidence that [the tortfeasors] had actual notice: [the insurer] did not attend pretrial conferences, attempt to intervene, or otherwise attempt to contact [the tortfeasors].

Id. at 529-30 (citations omitted). Appellant was not given “formal, express written notice” of respondent’s intent to exercise its subrogation right until 8 May 2001, more than six weeks after the 23 March 2001 filing of the satisfaction of judgment. Respondent, like the insurer in Group Health, did not intervene in its insured’s action against the tortfeasor and offers no evidence of any other attempt to provide appellant with notice.

In Group Health, the insurer argued that, during the underlying action, three references to its subrogation interest had been made: in a statement of the case, the insurer had been listed as one of the medical expense providers; in a response to interrogatories from three tortfeasors, the victim’s attorney (not the insurer itself) had stated that the insurer had asserted a subrogation right for all medical benefits; and at the victim’s deposition, her attorney had said that the insurer retained a subro-gation interest on the amount it had paid. Id. at 528-29. However, these references were insufficient to put [the tortfeasors] on notice of the insurer’s intent to exercise any subrogation rights. Id. at 530. Likewise, in the instant case, appellant’s alleged awareness that respondent had paid benefits did not put her on notice of respondent’s intent to exercise its subrogation rights.

The analogy with Group Health goes further. “Perhaps most important, [the insurer has] admitted it has no evidence that [the tortfeasors] intended to defraud it or otherwise defeat its subrogation interests * * Id. at 530. At oral argument, respondent withdrew any allegation of appellant’s intent to defraud. As in Group Health, “[appellant] thus had no actual notice or knowledge of [respondent’s] subrogation interest,” id., and we conclude that, like the Group Health insurer, “[respondent] should not be allowed to sleep on its rights when it had adequate opportunity to protect itself.” Id.

2. Satisfaction of Judgment

In March 2001, Owusu executed a satisfaction of judgment, stating that her judgment against appellant “ha[d] been paid and satisfied in full” and authorizing the court administrator to discharge it. Four months later, in July 2001, Owusu assigned to respondent the alleged right to recover $12,496 “from [appellant] * * * who is or might be liable [to Owusu].” But then appellant was no longer liable to Owusu; Owusu had so stated in the satisfaction of judgment. Owusu could not assign to respondent a right Owusu did not have.

“[I]f the subrogor lacks standing to maintain an action, so also does the subro-gee.” Regie de l’assurance Automobile du Quebec v. Jensen, 399 N.W.2d 85, 88 (Minn.1987). In August 2001, when this action was brought, in view of the satisfaction executed by Owusu (the subrogor) and filed by appellant’s attorney, Owusu lacked standing to maintain an action against appellant; therefore respondent (the subro-gee) also lacked standing.

Respondent argues that it never received notice of the satisfaction of judgment and that its “common law right to subrogation cannot be unilaterally destroyed without notice and an opportunity to be heard.” In support, respondent cites Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723 (Minn.1996). But Malmin is distinguishable: it applies to an insurer’s right to notification of a lawsuit and the corollary opportunity to intervene. Respondent had, but did not use, the opportunity mandated by Malmin, and Malmin does not address notifying insurers of a satisfaction of judgment.

Accordingly, because appellant’s attorney had no actual notice of respondent’s intent to exercise its subrogation rights when he filed the satisfaction of judgment, appellant did not willfully disregard that interest; the satisfaction of judgment therefore effectively terminated the victim’s right to pursue appellant, and the victim could not assign that right to her insurer. Therefore, respondent has no viable subrogation right against appellant.

DECISION

Because respondent had not directly notified appellant of its intent to exercise its subrogation rights before appellant filed a satisfaction of judgment, the filed satisfaction of judgment defeated respondent’s subrogation right.

Reversed and remanded.

      . “Owusu” refers both to Catherine Walker Owusu and her husband, Kwame Owusu, the actual insured, who was a co-plaintiff in the underlying action.

      . See Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723, 728, n. 4 (Minn.1996) (holding that an insurer may not require an insured to obtain written consent to sue a tort-feasor, but may require an insured to give an insurer notice of a suit of a tortfeasor so the insurer has the option of intervening).

      . Respondent argues that Group Health is distinguishable because it involved a settlement rather than a satisfaction of judgment. But this is a distinction without a difference: like a settlement, a satisfaction of judgment operates to end one party’s claim against another. "Once a satisfaction of judgment is filed with the district court, that judgment ceases to have any existence." Herubin v. Finn, 603 N.W.2d 133, 137 (Minn.App.1999) (quotation and citation omitted).


author: WILBUR, Circuit Judge.

text:
    2002 SD 106
    Julie BOOMSMA, Steve Boomsma and Erica Boomsma, Plaintiffs and Appellees, v. DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Defendant and Appellant.
    No. 21901.
    Supreme Court of South Dakota.
    Argued March 5, 2002.
    Decided Aug. 21, 2002.
    Rehearing Denied Oct. 3, 2002.

      Steven Johnson and Matthew T. Tobin of. Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Palls, South Dakota, Attorneys for plaintiffs and appellees.
    Brian J. Donahoe and Michael D. Bor-nitz of Cutler and Donahoe, Sioux Palls, South Dakota, Attorneys for defendant and appellant.
   WILBUR, Circuit Judge.

[¶ 1.] Julie and Erica Boomsma sustained injuries while driving through the town of Wolsey, South Dakota. Their car struck a flatbed railway car owned and operated by Dakota, Minnesota and Eastern Railroad Corporation. A jury awarded $1,081,655.28 for total damages resulting from this accident. Dakota, Minnesota and Eastern Railroad appeals. We affirm.

FACTS

[¶ 2.] Dakota, Minnesota and Eastern Railroad Corporation (DM & E) owns railroad tracks that cross Highway 281/14 through the northern edge of Wolsey, South Dakota. At the intersection, the tracks run east and west and the highway runs north and south. •

[¶ 3.] The DM & E railway crossing in question consists of three tracks: a main line, a passing or switching line and, 50 feet to the north, an elevator service line. For northbound vehicular traffic on Highway 281/14, the crossing is marked by a traffic sign located 110 ten feet before the tracks indicating that a railroad crossing is ahead. Immediately south of the main line, a crossbuck sign indicating “2 Tracks” is attached to a light pole which supports overhead warning lights. The switching line is located immediately north of the main fine. Finally, approximately fifty feet north of the switching line is the track which services the grain elevator (the service line).

[¶ 4.] Conversely, approaching the train crossing from the north heading south, one first sees a crossbuck sign which states “3 Tracks.” This crossbuck sign is located immediately north of the service line. After crossing the service line, a southbound traveler sees an overhead flashing light device along with another erossbuck attached to that light pole stating “2 Tracks.” This crossbuck is located directly north of the switching line.

[¶ 5.] As established by the above facts, a ear traveling north is warned that it is approaching only two tracks when there are actually three tracks. Northbound vehicles receive no indication that a third track exists. Vehicles traveling south are warned of all three tracks.

[¶ 6.] The overhead flashing lights and the crossbuck sign attached to the light poles were installed around 1980 pursuant to federal funding issued on June 27, 1978.

[¶ 7.] On January 26, 1998, at approximately 6:20 p.m., Julie and Erica Booms-ma were traveling north on Highway 281/14 through Wolsey. As they approached the railroad crossing, Boomsmas saw no flashing lights to indicate the presence of a train and they saw no one waving a lantern signaling that a train was on the tracks. Because it was dark, they saw no train on the tracks. In fact, they were able to see lights and business signs on the other side of the tracks. Boomsmas crashed into the side of a flatbed railcar that was stopped on the service line at the railroad crossing. Their car came to rest almost completely’Underneath the railcar.

[¶ 8.] Prior to the accident, a DM & E train had approached the Wolsey railroad crossing from the west. The train continued east past the Wolsey railroad crossing to where the main line and service line intersected. Then the train, consisting of two cars, backed onto the service line to hook-up five additional cars. Two of these five cars were flatbed cars. The train then continued in reverse until one of the flatbed cars came to rest on the service fine at the railroad crossing in question. Forsst-rom, one of the train’s conductors, was riding the flatbed through the intersection. He was aware the flashing overhead warning lights were not working. There is a dispute about whether or not Forsstrom got off the train and flagged the intersection. The conductor did not sound the whistle or use flares to mark the train in the crossing.

[¶ 9.] Julie Boomsma, who was employed full time in a Huron bank and was active on the family farm prior to the accident, broke her neck, her right leg and her right ankle. As a result of the accident, Julie required multiple surgeries and was left disabled, unable to participate in many of the activities she once could.

[¶ 10.] Erica, a freshman at Huron University, suffered injuries including a cracked sinus, a concussion and a large contusion on her right side. Erica has since recovered from these injuries.

ISSUES

[¶ 11.] DM & E appeals the following issues:

Whether state law claims are preempted by federal law in this case.
Whether the trial court erred in instructing the jury.
Whether the trial court properly admitted expert witness testimony.
Whether the trial court erred in denying defendant’s request for a mistrial based on SDCL 19-12-10 regarding settlement negotiations.
■Whether the trial court erred in allowing evidence of post-accident remedial measures. 1 . -
Whether the trial court erred in not granting DM & E’s motion for a new trial based on cumulative error.
Whether the evidence is sufficient to support the jury’s verdict.

ANALYSIS

ISSUE ONE

[¶ 12.] Whether Boomsma’s state law claims are preempted by federal law in this case.

[¶ 13.] The issue of federal preemption is one of law for the court to decide. Stanton v. State Farm Fire & Cas. Co., 78 F.Supp.2d 1029, 1031 (D.S.D.1999). DM & E asserts that the trial court erred by failing to correctly state DM & E’s duty in this negligence case. DM & E claims that the trial court erred in determining that the service line is a separate grade crossing and that DM & E failed to meet certain obligations regarding that separate crossing.

[¶ 14.] Federal statutes and regulations preempt state law under the Supremacy Clause of the United States Constitution. U.S. Const, art. VI, cl. 2. Preemption occurs: (1) when Congress expresses a clear intent to preempt state law; (2) when federal and state or local law conflict; (3) when compliance with both federal and state law is impossible; (4) where federal law contains an implicit barrier to state or local law; (5) when Congress has enacted comprehensive national legislation occupying an entire field; or (6) when state and local laws create an obstacle to the accomplishment of Congressional objectives. Louisiana Pub. Service Com’n v. F.C.C., 476 U.S. 355, 368-369, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).

[¶ 15.] The ultimate touchstone of statutory preemption is Congressional intent. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). “In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663-664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In this case, the issue is whether express preemption exists barring Booms-ma’s negligence "claim against DM & E through Congressional enactments such as the Federal Railroad Safety Act (FRSA) and the Highway Safety Act of 1973 (FHSA).

[¶ 16.] Congress enacted the FRSA “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101 (1994). The express preemption provision states:

Laws regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. . A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106 (1994). After enacting the FRSA, Congress passed the Highway Safety Act of 1973 which created the Federal Railway Highway Crossings Program (Crossings Program). See generally 23 U.S.C. § 130 (2000). The Crossings Program made funds readily available for construction projects relating to railroad crossings. Id.

[¶ 17.] Further, the Secretary of the Federal Highway Administration (FHWA) set forth regulations to implement the Crossings Program. See generally 23 C.F.R. § 646.214 (2002). These regulations address the design and adequacy of railroad crossing warnings. See generally 23 C.F.R. § 646.214(b) (2002).

[¶ 18.] Case law sets forth factors for deciding whether federal preemption exists. In Easterwood, a man was killed at a grade crossing and his widow brought a negligence action claiming the railroad failed to maintain adequate warning signs at the crossing. The crossings were improved with federal funds. Easterwood, 507 U.S. at 661, 113 S.Ct. 1732. There were five crossings. Id. at 672, 113 S.Ct. 1732. Four of the crossings were equipped with warning devices, however, the crossing in question had no warning devices installed. This was because the city declined to approve construction of a traffic island necessary for installation of the warning devices; therefore, only motion detection circuitry was in place at that crossing. Id. The Court ultimately held that the plaintiffs claim as to adequate warning devices was not preempted because the crossing where the accident occurred was a separate crossing from the other four crossings and federal funds were not used in the installation of warning devices at that crossing. Id. at 673, 113 S.Ct. 1732.

[¶ 19.] Moreover, the Eighth Circuit Court of Appeals held that, even if federal funds were used in the installation of warning devices, the devices have to be installed and fully operational for preemption to exist. St. Louis Southwestern Railway Co. v. Malone Freight Lines, 39 F.3d 864, 867 (8th Cir.1994). Therefore, in order for preemption to apply, federal funds must be used in the installation of warning devices and the warning devices must be installed and fully operational.

[¶ 20.] Were the three tracks at the Wolsey crossing one crossing or was the elevator service line a separate line? DM & E argues that installation of passive warning devices preceding the railroad tracks on either end of U.S. Highway 281/14 indicate that the Federal Highway Department and the South Dakota Department of Transportation considered the three tracks as one crossing. In addition, DM & E argues that, in the upgrade of the Wolsey Crossing, rubberized mats were installed for all three tracks using federal funds and, therefore, the three tracks should be considered one crossing.

[¶ 21.] Prior to the accident, overhead flashing warning lights paid for with federal funds were present immediately south of the main and switching lines. However, those warning lights were not wired to operate when a train was on the service line. No overhead flashing lights existed immediately south of the service line prior to the accident.

[¶ 22.] Crossbuck signs posted at the crossing suggest the service line is a separate line. For those traveling north on Highway 14, the crossbuck sign indicates there are “2 Tracks” ahead, not “3 Tracks.”

[¶ 23.] Finally, Tim Carlson, the manager of signals and real estate for DM & E, testified that “tracks' servicing elevators such as the one involved in this case will not be protected by the same set of signs and warning devices if they are fifty feet or more from the nearest track.” The service line was fifty feet or more from the switching line and main line. The same set of signs and warning lights did not protect all three tracks. It is clear that the DM & E considered the service line to be independent of the other tracks.

[¶ 24.] It is of no consequence that federal funds were used to put rubberized mats on the service line. The rubber mats do not constitute warning devices. Therefore, the trial court correctly applied the rulings in Easterwood and Malone to the facts of this case. The trial court properly concluded that federal funds were not used in the installation of adequate warning devices at the crossing where the accident occurred. In addition, the court determined that for the motorist traveling northbound on Highway 281/14, there were no warning devices installed and operational at the service track crossing. DM & E did not meet its burden of proof on the preemption issue. Therefore, the trial court did not err in its determination on this issue.

Other DM <& E Arguments

Does DM & E have a common law or statutory duty?

[¶ 25.] Since federal law does not apply in this case.it is necessary to look to DM <& E’s common law and statutory duties. Under common law, DM & E owes an ordinary duty of care to the public. Malone Freight, 39 F.3d at 867. “[A] railroad is required to take precautions to prevent injury to crossing motorists if a reasonable person in the railroad’s position would take such precautions.” Duncan v. Union Pacific R. Co., 790 P.2d 595, 598 (Utah Ct.App.1990).

[¶ 26.] DM & E also has a statutory duty under SDCL 49-16A-87, which states:

Each railroad shall construct at all points where its road crosses any public road, good, sufficient, and safe crossings and shall erect at such points, at a sufficient elevation from the road to admit free passage of vehicles of every kind, a sign with large and distinct letters giving notice of the proximity of the road and warning persons of the necessity for looking out for trains.

[¶ 27.] DM & E has both a common law and statutory duty to protect the public. Therefore, the Boomsmas have the right to bring a negligence claim in state court.

[¶ 28.] DM & E further argues that the State of South Dakota or the City of Wolsey are indispensable parties subject to joinder under SDCL 49-16A-89.2 and that Boomsma’s claim should be dismissed under SDCL 15 — 6—19(b) because no claim was made against either public entity within the time prescribed under SDCL 3-21-2. SDCL 49-16A-89.2 suggests that the State of South Dakota did not have a duty under the statute until after the accident occurred.

Any railroad tracks over which an operating train travels which crosses a portion of the state trunk highway system, as defined in chapter 31 — 4, shall have a crossing alarm or a lighting device, or both, to alert the public of approaching trains and to notify the public of trains crossing the highway. The crossing alarm or lighting device shall be in place by December SI, 1998. The Department of Transportation shall decide the method which is most suitable for the protection of the public. The Department of Transportation shall use any federal highway- safety funds to pay for the crossing alarms and lighting devices. However, if federal highway safety funds are not available, the railroad owning or operating the tracks is liable for the expenses of the crossing alarm or lighting device, (emphasis added).

Id. This accident occurred on January 26, 1998. The State’s duty went into effect on December 31, 1998. Therefore, the requirements of this statute were not in effect at the time of the accident and are inapplicable to this case.

ISSUE TWO

[¶ 29.] Whether the trial court erred in instructing the jury.

[¶ 30.] The standard of review regarding jury instructions, is as follows:

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct on issues lacking support in the record. Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give a proposed instruction is on the party contending error.
This Court has repeatedly stated that “ ‘[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law.’ ”

Overfield v. American Underwriters, 2000 SD 98, ¶ 11, 614 N.W.2d 814, 816 (citations omitted).

Visibility Instruction

[¶ 31.] DM & E contends that it was error for the trial court to not include its proposed jury instruction regarding visible and audible notice. DM & E’s proposed instruction was based upon SDCL 32-29-4, which states:

If any person driving a vehicle approaches a railroad grade crossing and a clearly visible or audible signal gives warning of the immediate approach of a railway train or car, he shall bring such vehicle to a complete stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad and may not proceed until he can do so safely. A violation of this section is a Class 2 misdemeanor.

[¶ 32.] The trial court denied DM & E’s proposed instruction regarding this statute because, under the facts in this case, the statute does not apply. The plain meaning of SDCL 32-29-4 contemplates that a driver must stop his or her car when “a clearly visible or audible signal gives warning of the immediate approach of a railway train or car[.]” Id. In this case there were no visible or audible warning devices present for the northbound Boomsmas at the crossing in question.

[¶ 33.] The service line was not connected to the overhead warning lights which explains why those lights were not activated. The crossbuck sign attached to the overhead warning lights indicated only two tracks instead of three. The evidence is undisputed that no clearly visible or audible signal indicated the presence of an approaching train on January 26, 1998 at 6:20 p.m.

[¶ 34.] DM & E’s proposed jury instruction also contemplates that Julie and Erica Boomsma were contributorily negligent for not stopping based on the presence of passive warning devices. Con-tributary negligence is a “breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.” Starnes v. Stofferahn, 83 S.D. 424, 432, 160 N.W.2d 421, 426 (1968). The trial court correctly concluded the provisions of SDCL 32-29-4 were not applicable to the facts of this case.

[¶ 35.] In any event, the trial court gave an instruction on contributory negligence. Therefore, looking at the jury instructions as a whole, the trial court accurately set forth the law applicable to this case. See Overfield, 2000 SD 98 at ¶ 11, 614 N.W.2d at 816.

Punitive Damages Instruction and Evidence

[¶ 36.] DM & E also contends that it was error to instruct on punitive damages and to submit the Boomsma’s punitive damages claim to the jury. SDCL 21-1-4.1 allows:

In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a- hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.

[¶ 37.] Pursuant to SDCL 21-1-4.1, if the trial court, by clear and convincing evidence, finds that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct by a party, then the issue should be submitted for the jury to decide. See Kieser v. Southeast Properties, 1997 SD 87, 566 N.W.2d 833. There is no requirement that the required hearing take place before the trial; it may be held at the close of the evidence. Id.

[¶ 38.] DM & E contends that, even though an award for punitive damages was not given, it was prejudicial for the jury to hear evidence regarding DM & E’s worth. DM & E claims hearing this evidence caused the jury to award more compensatory damages. DM & E would have this Court presume prejudice any time a trial court allows the issue of punitive damages to be submitted to the jury if the jury fails to award punitive damages. We decline to adopt such a presumption.

[¶ 39.] A hearing was conducted outside the presence of the jury at the close of the evidence in the Boomsma’s case to discuss whether or not the issue of punitive damages would be submitted to the jury. The trial court, pursuant to SDCL 21-1-4.1, found sufficient evidence existed for the punitive damage issue to be submitted to the jury. The trial court committed no error in doing so.

[¶ 40.] Further, even if the instruction was given in error, DM & E did not prove the error was prejudicial. The evidence regarding DM & E’s worth did not prejudice it so as to require a reversal. The jury did not award punitive damages and there was ample evidence to support the jury’s award of compensatory damages.

ISSUE THREE

[¶ 41.] Whether the trial court properly admitted expert witness testimony.

[¶ 42.] The standard of review for the admission of expert testimony has been stated in Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 6, 552 N.W.2d 801, 805:

We review questions of the admissibility of an expert witness’ testimony under an abuse of discretion standard. We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony. The trial court’s decision on such matters will not be reversed absent a clear showing of an abuse of discretion, (citations omitted).

Dr. Abrams’ Expert Qualifications

[¶ 43.] SDCL 19-15-2 governs the admissibility of expert testimony. The test was originally set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by South Dakota in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, (quoting Federal Rule of Evidence 702).

See also SDCL 19-15-2. According to this test, the trial judge must determine “ ‘that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand-.’ ” In re Dokken, 2000 SD 9, ¶ 40, 604 N.W.2d 487, 498 (2000) (quoting State v. Moeller, 1996 SD 60, ¶ 52, 548 N.W.2d 465, 479). The requirements of the test are satisfied if the expert testimony is relevant and has “ ‘a rehable basis in the knowledge and experience of his discipline.’ ” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786).

[¶ 44.] Dr. Abrams is a qualified expert. He has an undergraduate degree from Ohio State University with a background in physics, physiology and mathematics. He graduated from the School of Optometry at Ohio State University and has practiced as an optometrist for approximately forty years.

[¶ 45.] Abrams has devoted time to research in the area of vehicular visibility and traffic safety. , He has written several articles and has contributed to academic textbooks. More specifically, Abrams has authored chapters entitled “Nighttime Vision and Railroad Crossings,” and “Forensic Aspects of Vision and Highway Safety.” The list of his qualifications is extensive. Clearly Abrams is an expert qualified to testify.

[¶ 46.] The trial court found Abrams’ testimony reliable because his opinions are accepted in the scientific community. Further, the court found that Abrams’ testimony was relevant and helpful to the jury as to the issue of contributory negligence and the issue of visibility. Abrams concluded that it would have been difficult for Julie Boomsma to see the train and even more difficult to see the alleged flagman. Abrams visited the scene, took photographs and reviewed reports pertaining to the Boomsma accident.

[¶ 47.] Therefore, Abrams’ education and experience accompanied by his review of the accident satisfies the Daubert test. The trial court did not abuse its discretion and properly admitted Abram’s testimony.

Dr. Abrams’ Professional License

[¶ 48.] DM & E also contends that evidence pertaining to Abrams’ optometry license should have been admitted. DM & E contended that Abrams’ license was revoked because of Abrams’ alleged misconduct. Abrams, however, testified that he voluntarily relinquished his license rather than contest the alleged allegations.

[¶ 49.] The trial court has broad discretion in the admissibility of relevant evidence and, although evidence may be relevant, it is not always admissible. SDCL 19-12-3 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

[¶ 50.] The trial court, pursuant to a motion in limine, ordered that any reference to Abrams surrendering his license should be redacted from his taped testimony.

[¶ 51.] While it often constitutes permissible impeachment to cross-examine expert witnesses on issues that reflect on credibility, there are limits. In this case, the court reasoned that it would be more prejudicial than probative to allow testimony which amounted to no more than mere allegations of misconduct. DM & E established no basis for questioning Abrams about these allegations as there was no evidence that Abrams lost his license due to misconduct. Abrams was not charged with or convicted of any crime and no administrative agency made findings of fact or entered conclusions of law regarding misconduct by Abrams.

[¶ 52.] The trial court determined that admitting allegations of misconduct by Abrams into evidence would be highly prejudicial. The trial court did not abuse its discretion in excluding testimony regarding the alleged misconduct.

CONCLUSION

[¶ 53.] DM & E has raised several other issues. “We need not address [the remaining issues raised by DM & E], as they ‘lack sufficient merit or importance to warrant individual attention.’ Mattson v. Rachetto, 1999 SD 51, ¶ 7 n. 4, 591 N.W.2d 814 n. 4.” Parker v. Casa Del Rey-Rapid City, Inc. 2002 SD 29, ¶ 27, 641 N.W.2d 112, 122.

[¶ 54.] Affirmed.

[¶ 55.] GILBERTSON, Chief Justice, and SABERS and AMUNDSON, Justices, and GORS, Acting Justice, concur,

[¶ 56.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 57.] WILBUR, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . The jury awarded $1,059,873.40 for Julie and Steve Boomsma and $21,781.88 for Erica.

      . The court in Malone Freight looked at the policy behind this test:
      Before preemption, the public is protected by a railroad’s state common-law duty of care. After installation of federally mandated warning devices, the public is protected by those devices. A plan to install devices and federal approval of a plan do not protect the public.... [Therefore] a railroad’s common-law duty of care must continue until those devices are installed.

        Malone Freight, 39 F.3d at 867.

      . Evidence demonstrated that Julie Booms-ma’s damages were as follows:
      $112,586.32 Medical Bills
      $583,541.00 Economic Loss
      $ 3,000.00 Loss of Automobile
      $ 1,200.00 Gas and Hotel Bills for Medical Appointments

        $700,327.32 TOTAL
      This is without including pain and suffering, loss of enjoyment of life, etc.

      . Abrams did not testify in person at trial. Instead, the jury saw his videotaped deposition.