Congdon v. Berg

Decision Date03 April 2013
Docket NumberA147139.,090405686
Citation299 P.3d 588,256 Or.App. 73
PartiesNancy CONGDON, Plaintiff–Respondent, v. Matthias BERG, Defendant, and Farmers Insurance Company of Oregon, an Oregon corporation, Defendant–Appellant.
CourtOregon Court of Appeals


Thomas M. Christ argued the cause for appellant. With him on the briefs was Cosgrave Vergeer Kester LLP.

Maureen Leonard argued the cause for respondent. With her on the brief was David Paul.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.


In this action to recover uninsured motorist benefits, arising out of plaintiff's injury in an automobile accident with an uninsured driver, defendant Farmers Insurance Company appeals from a general judgment entered after a jury's verdict on damages. The judgment awarded plaintiff $48,122.87 in economic damages and $275,000.00 in noneconomic damages. Defendant also appeals from a supplemental judgment awarding plaintiff attorney fees under ORS 742.061. We conclude that, as defendant asserts, the trial court erred in rejecting its request to poll the jurors individually to determine whether the same nine jurors agreed on economic and noneconomic damages, as required in this case for a valid verdict. As a result, we reverse and remand for a new trial. We also reverse the award of attorney fees and, because the issue is likely to arise on remand, hold that an award of fees was not authorized because defendant met the requirements to come within the safe harbor of ORS 742.061(3).

We address first the jury polling issue and set forth the material facts related to that issue. Plaintiff was injured in an automobile accident with an uninsured driver. She filed a claim with her own insurer, defendant, alleging that the uninsured driver was at fault and that defendant was liable for her damages. Defendant admitted that the uninsured driver was at fault and that defendant was liable for plaintiff's damages. The case went to trial only on the issue of damages.

As noted, the jury returned a verdict for plaintiff, finding that she had suffered economic damages of $48,122.87 and noneconomic damages of $275,000.00. However, the foreperson of the jury stated that the findings were not unanimous. Under the Oregon Constitution, in civil cases, “three-fourths of the jury may render a verdict.” Or. Const., Art. VII (Amended), § 5(7); ORCP 59 G. When there is a twelve-person jury, that means that the same nine or more jurors must agree, in full, on every interdependent element of a particular claim against a particular defendant. Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 613, 642 P.2d 624 (1982) ( [T]he same jurors must constitute the three-fourths majority that finds every separate element required for the verdict.”). As we noted in Veberes v. Knappton Corporation, 92 Or.App. 378, 383, 759 P.2d 279,rev. den.,307 Or. 78, 763 P.2d 732 (1988), “at least nine jurors” is not the same as “at least the same nine jurors.” The same nine jurors must agree on every interdependent element of a claim. Id. at 381–82, 759 P.2d 279;see Clark v. Strain, et al., 212 Or. 357, 364, 319 P.2d 940 (1958) (noting with approval other cases that hold that the “minimum legal number of jurors required for a valid verdict must be the same jurors voting similarly on each separate issue” that is required to be resolved).

In civil cases, each party has an absolute privilege to request a poll of the jury to ensure that the verdict is correct. ORCP 59 G(3); Eisele v. Rood, 275 Or. 461, 468, 551 P.2d 441 (1976). In light of its uncertainty that the same nine jurors had agreed on both economic and noneconomic damages, defendant asked the court to poll the jury. The court polled the jurors collectively on each type of damages. First the court asked for a show of hands in support of the finding of economic damages. By raising their hands, nine jurors indicated that they had agreed with the finding on economic damages, and three jurors indicated that they had voted no. The court then asked the jurors about the finding of noneconomic damages. By a show of hands, eight jurors indicated that they had agreed with the findings and four indicated that they had disagreed. Counting only eight jurors in support of the finding on noneconomic damages, the court announced that the verdict was not legal and that it intended to send the jury back to deliberate further. At that point, plaintiff requested that the judge poll the jury again. The court agreed to do so and once again asked the jurors for a show of hands on each type of damages. That time, the court counted nine votes in favor of the economic damages verdict and nine votes in favor of the noneconomic damages verdict.

The court did not discharge the jurors, but sent them back to the jury room and asked the parties whether they objected to receiving the verdict and discharging the jury. Defendant's counsel expressed the concern that, even though nine jurors had supported each type of damages, they were not the same nine jurors: [J]uror number two was yes on the economic, no on the non-economic. Juror number eleven was reversed the same way.” Plaintiff's counsel disagreed, stating that he thought he had seen the same nine jurors vote “yes” on economic and noneconomic damages. Defense counsel then stated:

“What I would recommend is have them come in and ask each individually yes or no, and then we know for the record who is saying.

“Polling them this way, where they just raise their hand without anything in the record indicating jurors number one, two, three, eight, nine or whoever has their hand up, there is no way from the record, itself, to verify or resolve this.”

The court rejected defense counsel's request and declined to individually poll the jurors. The court explained that it was not certain that the same nine jurors needed to agree on the different types of damages. In any event, the court said that, because there was nothing on the verdict form itself that indicated that the same nine jurors had to agree on both types of damages, there was “an issue of waiver.” The court entered judgment on the verdict.

On appeal, defendant argues that, as it requested and as a matter of right, defendant was entitled under ORCP 59 G(3) to have the jurors polled individually to ensure that the same nine jurors agreed that plaintiff was entitled to both economic and noneconomic damages and that the verdict therefore was proper. Under ORCP 59 G(3), [w]hen the verdict is given, and before it is filed, the jury may be polled on the request of a party, for which purpose each juror shall be asked whether the verdict is the juror's verdict. If fewer jurors answer in the affirmative than the number required to render a verdict, the jury shall be sent out for further deliberations.”

Although the rule's statement that “the jury may be polled” suggests that whether or not to poll the jury is a matter within the trial court's discretion, in fact, this court and the Supreme Court have said that, unless waived, a party's right upon request to have the jury polled in a civil case is absolute. In Freeman v. Wentworth & Irwin, Inc., 139 Or. 1, 7 P.2d 796 (1932), the Supreme Court considered whether Oregon Code, title II, ch 3, § 2–319 (1930), which is similar to ORCP 59 G(3) and which stated in part that [w]hen a verdict is given, and before it is filed, the jury may be polled on the request of either party,” provided a right to polling, id. at 20, 7 P.2d 796, and whether the right had been waived, id. at 20–24, 7 P.2d 796. The court held that “our statute does not make the polling of the jury discretionary with the judge but, in harmony with the general rule * * *, grants this privilege as an absolute right.” Id. at 20, 7 P.2d 796 (citations omitted); accord Eisele, 275 Or. at 468, 551 P.2d 441 (citing Freeman );Brummett v. Parson, 49 Or.App. 588, 588, 619 P.2d 1355 (1980) (citing Eisele ).

Plaintiff does not dispute that general rule but offers three responses, the first two of which avoid the question of the sufficiency of the jury poll: (1) defendant waived the right to a verdict in which the same nine jurors agreed on economic and noneconomic damages; 1 (2) as a matter of law, there was no requirement that the same nine jurors agree on economic and noneconomic damages; and (3) the court did poll the jury, twice. We consider and reject each response in turn.

Plaintiff first contends that, by failing either to include a requirement in the verdict form or to request an instruction that the same nine jurors must agree as to each component of damages, defendant waived the right to have the same nine jurors decide both types of damages. Because of the constitutional implications of the failure to receive a three-fourths verdict, Or. Const., Art. VII (Amended), § 5(7), it is not by any means clear that a party waives the right to have the same nine jurors agree on all parts of the verdict when a jury instruction concerning the verdict or the verdict form may lack specificity regarding the requirements for a valid verdict. See Shultz v. Monterey, 232 Or. 421, 425, 375 P.2d 829 (1962) (“A verdict concurred in by less than three-fourths of the jury is invalid, and the failure to object thereto before the verdict is received and filed does not constitute a waiver of such invalidity.”); Clark, 212 Or. at 368, 319 P.2d 940 (when faced with a verdict of less than the constitutionally required number, the court must send the jury out for further deliberation). In any event, we reject plaintiff's contention as a factual matter and conclude that there was no waiver in this case, because the trial court ended up instructing the jury that the same nine jurors must agree on damages.

The verdict form, which defendant prepared, had only one question:

“1. What are the plaintiff's damages?

ANSWER: Economic Damages: $__________

Noneconomic Damages: $__________

“At least nine of you...

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