Armstrong v. Gondeiro, 99-385.

• Decision Date: 12 December 2000
• Docket Number: No. 99-385.,99-385.
• Citation: 2000 MT 326,303 Mont. 37,15 P.3d 386
• Parties: Vivian ARMSTRONG, Plaintiff and Respondent, v. Donald GONDEIRO, Defendant and Appellant.
• Court: Montana Supreme Court

15 P.3d 386

2000 MT 326

303 Mont. 37

Vivian ARMSTRONG, Plaintiff and Respondent, v. Donald GONDEIRO, Defendant and Appellant.

No. 99-385.

Supreme Court of Montana.

Submitted on Briefs May 11, 2000.

Decided December 12, 2000.

Gary L. Walton, Gary L. Walton, PLLC, Butte, MT, For Appellant.

Norman L. Newhall, Linnell, Newhall, Martin & Schulke, P.C., Great Falls, MT, For Respondent.

Justice TERRY N. TRIEWEILER delivered the opinion of the Court.

¶ 1 The Plaintiff, Vivian Armstrong, filed this action in the District Court for the Eighth Judicial District in Cascade County to recover damages allegedly caused by the negligence of the Defendants, Donna Karns and Donald Gondeiro. Following a jury trial, damages were awarded against Karns but none were awarded against Gondeiro. The District Court granted Armstrong's motion for a new trial of the claim against Gondeiro, who appeals the District Court's order. We affirm the order of the District Court.

¶ 2 The following issues are presented for review:

¶ 3 1. Have Armstrong's claims against Gondeiro been satisfied by the judgment paid by Karns?

¶ 4 2. Did the District Court abuse its discretion when it granted Armstrong's motion for a new trial?

¶ 5 3. Did the District Court err when it granted Armstrong's motion for judgment as a matter of law?

FACTUAL BACKGROUND

¶ 6 On November 14, 1997, Vivian Armstrong filed a complaint in which she named Donna Karns and Donald Gondeiro as Defendants. Armstrong alleged that on November 18, 1994, Karns negligently drove her vehicle into the rear of the vehicle in which Armstrong was a passenger and injured her. Armstrong also alleged that on April 10, 1995, while she was crossing a street, Gondeiro negligently struck her with his vehicle and injured her. Armstrong alleged that her injury that resulted from each incident was indivisible and that, therefore, both Karns and Gondeiro were liable for the entire amount of her damages.

¶ 7 On January 15, 1999, Karns moved the District Court for an order granting each Defendant four peremptory challenges to the jury panel. Karns asserted that Gondeiro's and her theories were adverse to each other. Gondeiro joined Karns' motion.

¶ 8 On February 1, 1999, the District Court entered its pretrial order. The parties agreed that Karns was negligent and that as a result Armstrong was injured. Karns contested only the amount of Armstrong's damages. Gondeiro, however, denied that he was negligent and denied that he injured Armstrong. The District Court granted Karns' motion and awarded both Karns and Gondeiro four peremptory challenges to the jury panel. The District Court found:

The interests of the defendants are hostile. Each defendant is attempting to pass the blame off to the other defendant by asserting that the plaintiff's damages are related to either the first or the second accident.

¶ 9 At the conclusion of the evidence, the District Court held that Gondeiro was negligent as a matter of law, however, following trial, the jury found that Gondeiro's negligence did not cause injury to Armstrong. The jury found that Karns' negligence did cause injury to Armstrong and that Armstrong's damages were $43,737.04.

¶ 10 Following the jury verdict, Armstrong moved for a new trial because the District Court granted both Karns and Gondeiro four peremptory challenges. On April 22, 1999, the District Court granted Armstrong's motion for a new trial. It stated:

[T]he Defendants were each addressing completely different issues. Karns had already admitted liability and was litigating only the issue of damages; whereas, Gondeiro was addressing the issue of causation, i.e., did his negligence on April 10, 1995, cause Armstrong's injuries. In seeking additional peremptory challenges, Karns and Gondeiro attempted to show that their interests were requisitely hostile to each other. However, aside from denying their own negligence was the cause of Armstrong's injuries, Karns and Gondeiro's only evidence to support a finding of hostility is that Gondeiro pursued a course of discovery to establish that Armstrong's injuries were preexisting.

Gondeiro now appeals from the judgment of the District Court.

DISCUSSION

ISSUE 1

¶ 11 Have Armstrong's claims against Gondeiro been satisfied by the judgment paid by Karns?

¶ 12 Gondeiro's first argument on appeal is that since damages allegedly caused by Karns and Gondeiro were indivisible, payment of the judgment entered against Karns satisfied any claim against Gondeiro. Whether Armstrong's acceptance of the judgment satisfies her claim against Gondeiro is an issue of law. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 469, 898 P.2d 680, 686 (1995).

¶ 13 Gondeiro takes the position that Armstrong's claims were satisfied by Armstrong's acceptance of the judgment, based on his assumption that the jury applied the "single indivisible injury rule." The single indivisible injury rule can apply even though there is no concert of action between the defendants. Azure v. City of Billings, 182 Mont. 234, 251, 596 P.2d 460, 470 (1979). The rule serves to shift the burden of proving the divisibility of an injury to defendants who have, by separate acts, been found to have caused injury to the plaintiff. Azure, 182 Mont. at 253, 596 P.2d at 471. If the harm is not divisible between the defendants, then joint and several liability will be imposed on both. Azure, 182 Mont. at 251, 596 P.2d at 470. Gondeiro asserts that application of the single indivisible injury rule should preclude Armstrong's claims against him. While we agree with Gondeiro's characterization of the single indivisible injury rule, we conclude that it does not bar Armstrong's claims because, as illustrated by the jury instructions, the rule was not applied by the jury.

¶ 14 Specifically, jury instruction No. 9 directed the jury to find one award of total damages "if you find that the acts or omissions of each Defendant were a cause of Plaintiff's injuries ." (Emphasis added.) Instruction No. 28 allowed the jury to render a single sum verdict only "[if] you find that Vivian Armstrong is entitled to recover damages against more than one defendant." (Emphasis added.)

¶ 15 Gondeiro's argument ignores the jury's determination that his negligence did not cause Armstrong's injuries and therefore did not award damages that he obviously caused. For example, the uncontroverted evidence at trial was that Armstrong received medical treatment as a result of the Gondeiro accident, including $520.42 for an ambulance and $3693.09 for hospital services from April 10 to 12, 1995. These damages were obviously not attributable to Karns. The jury awarded damages for only the injury caused by Karns because it found no injury was caused by Gondeiro. Therefore, the District Court properly held that satisfaction of the judgment against Karns did not satisfy all damage claims against Gondeiro.

ISSUE 2

¶ 16 Did the District Court abuse its discretion when it granted Armstrong's motion for a new trial?

¶ 17 We review a district court order granting a new trial pursuant to § 25-11-102(1) and (7), MCA, for a manifest abuse of discretion. Benson v. Heritage Inn, Inc., 1998 MT 330, ¶ 13, 292 Mont. 268, ¶ 13, 971 P.2d 1227, ¶ 13. "The decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion." Baxter v. Archie Cochrane Motors, Inc., 271 Mont. 286, 287-88, 895 P.2d 631, 632 (1995).

¶ 18 Section 25-11-102, MCA, provides the grounds for a new trial:

The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

....

(7) error in law occurring at the trial and excepted to by the party making the application.

¶ 19 Gondeiro contends that the District Court abused its discretion when it concluded that it had erred when it granted each Defendant four peremptory challenges. Armstrong responds that the District Court's conclusion was correct because the Defendants' positions were not hostile.

¶ 20 The role of a jury in both civil and criminal cases is to resolve disputed issues of fact. State v. DeVore, 1998 MT 340, ¶ 37, 292 Mont. 325, ¶ 37, 972 P.2d 816, ¶ 37. Where issues of fact exist, the jury is the ultimate trier of the case and fairness requires that both parties have an equal opportunity to shape the jury's composition by being provided an equal number of peremptory challenges. DeVore, ¶ 37. "A peremptory challenge is a challenge to a prospective juror for which no reason need be given or cause assigned." 47 Am.Jur.2d Jury § 234 (1995). Section 25-7-224, MCA, provides each party with four peremptory challenges. In civil actions where there are several plaintiffs or several defendants, the general rule is that all parties on the same side are entitled to only the number of peremptory challenges allowed a single plaintiff or defendant. See 50A C.J.S. Juries § 427 (1997); Bueling v. Swift, 1998 MT 112, ¶ 15, 288 Mont. 472, ¶ 15, 958 P.2d 694, ¶ 15. The exception to the rule is when litigants on the same side are adverse to each other with respect to an issue of fact that the jury will decide. Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (1986). If coparties are not adverse and are provided with additional peremptory challenges, then they have no motive to exercise their challenges against each other and instead exercise them against their opponent. See Wardell v. McMillan, 844 P.2d 1052, 1061 (1992). "The side with the greater number of peremptory challenges clearly has a tactical advantage created by its ability to eliminate potentially unfavorable jurors without cause." King v. Special Resource Management, Inc., 256 Mont. 367, 371,...