Grand Ventures, Inc. v. Whaley

• Decision Date: 13 December 1991
• Citation: 622 A.2d 655
• Parties: GRAND VENTURES, INC., Plaintiff, v. Terry M. WHALEY, et al., Defendants, Third Party Plaintiffs, v. HOLCOMB & SALTER, a business entity of the State of Delaware, Third Party Defendant. . Submitted:
• Court: Delaware Superior Court

Page 655

622 A.2d 655

GRAND VENTURES, INC., Plaintiff, v. Terry M. WHALEY, et al., Defendants, Third Party Plaintiffs,

v.

HOLCOMB & SALTER, a business entity of the State of

Delaware, Third Party Defendant.

Superior Court of Delaware Kent County.

Submitted: Dec. 13, 1991.

Decided: March 31, 1992.

Jeffrey S. Welch and Philip Trainer, Jr., of Ashby, McKelvie & Geddes, Wilmington, for plaintiff.

N. Maxson Terry, Jr., of Terry, Terry, Speakman & Wright, Dover, for defendant Terry M. Whaley.

Stephen P. Casarino, of Casarino, Christman & Shalk, Wilmington, for Holcomb & Salter, third party defendant.

STEELE, Judge.

Holcomb & Salter Insurance Agency ("Holcomb & Salter") move for a new trial based on the propriety of certain jury instructions and alleged inconsistencies in the jury's verdict in the trial of Grand Ventures v. Whaley v. Holcomb & Salter, Del.Super., C.A. 87C-FE-21. Grand Ventures has made a post-trial motion for treble damages, attorneys' fees, costs and pre-judgment interest against Holcomb & Salter and for costs and pre-judgment interest against Terry M. Whaley ("Whaley").

Facts

The controversy which ultimately resulted in trial stemmed from the lack of insurance coverage to reimburse plaintiff, Grand Ventures, Inc. ("Grand Ventures") for fire damage to its restaurant, "Irish Eyes." In its complaint, Grand Ventures alleged it had paid a premium to Whaley and the Insurance Place ("TIP") ¹ and in return received a document labeled as an insurance binder. Upon seeking insurance coverage for severe fire damage to the restaurant, Grand Ventures learned of Whaley's failure to procure an insurance policy. Grand Ventures alleged Whaley acted as Holcomb & Salter's agent at all times relevant to the complaint. Grand Ventures ultimately brought suit against Whaley and Holcomb & Salter for breach of contract, negligence and fraud and against Holcomb & Salter for alleged violations of the Consumer Fraud Act, 6 Del.C. § 2511, et seq. and the Deceptive Trade Practices Act, 6 Del.C. § 2531 et seq. ("DTPA").

The Court instructed the jury on agency, negligence, the Consumer Fraud Act and the Deceptive Trade Practice Act. Pursuant to Superior Court Civil Rule 49(b), the Court issued special interrogatories to the jury as follows:

1. Do you find in favor of the plaintiff, against the defendant, Whaley?

2. Do you find in favor of the plaintiff, against the defendant Holcomb & Salter?

3. If your answer to No. 2 is "Yes," do you find any violation of the Consumer Fraud Statute?

4. If your answer to No. 2 is "Yes," do you find any violation of the Deceptive Trade Practices Act?

5. If your answer to No. 1 or No. 2 is "Yes," in what amount of compensatory damages do you award plaintiff?

6. If your answer to No. 1 is "Yes," do you find punitive damages? If so, in what amount?

The jury returned a verdict in favor of Grand Ventures and against both Whaley and Holcomb & Salter. More specifically, the jury found against Whaley and Holcomb & Salter on the negligence claims and awarded plaintiff $70,000 as compensatory damages. Additionally, the jury found against Whaley for fraud and awarded plaintiff $4,000 as punitive damages against Whaley. The jury also found Holcomb & Salter had violated the DTPA but not the Consumer Fraud Act.

The jury's verdict sheet contained affirmative answers to special interrogatories 1, 2, and 4. In response to no particular inquiry, the bottom of the verdict sheet also contained a notation as follows:

85%-Holcomb & Salter

15%-Mr. Whaley

Outside the jury's presence, counsel argued over the proper interpretation of this notation and how it related to the jury's findings. Counsel for Whaley argued the verdict should result in apportionment of fault in accordance with the jury's notation. Counsel for Holcomb & Salter argued the impropriety of apportionment of fault following an affirmative response to special interrogatory # 4 through which the jury found Holcomb & Salter violated the Deceptive Trade Practices Act as noted supra. Counsel for Holcomb & Salter claimed that the affirmative response to # 4 necessarily entailed a finding of Whaley as Holcomb & Salter's agent and that the jury's apportionment does not make sense in the context of agency because all liability for an agent's negligence falls upon the principal of that agent.

Holcomb & Salter argued the jury cannot consistently find both parties negligent and a principal/agency relationship between them and that this inconsistency represents confusion in the minds of the jury. Holcomb & Salter claimed the jury's apportionment of fault between Holcomb & Salter and Whaley could not be reconciled with its finding Whaley was an agent of Holcomb & Salter.

After a meeting with counsel in chambers, the Court decided it would submit additional special interrogatories to allow the jury to apportion the percentage of the relative degrees of fault of Whaley and Holcomb & Salter if the jury gave affirmative answers to questions 1 and 2 on the original interrogatories (above) based on the negligence of both parties. In addition to Whaley's requested special interrogatory on apportionment, Holcomb & Salter requested the Court ask the jury if it found an agency relationship between Holcomb & Salter and Whaley. Upon the Court's submission of the question "[d]id you find Terry M. Whaley to be the agent of Holcomb & Salter?" the jury answered affirmatively. After further argument outside the jury's presence, the Court asked the jury to reply to the following:

"... there is more information on the verdict sheet that's been given to us than was requested and in light of that I have to ask an additional question of you, and that is if your answer was yes to both Questions 1 and 2 and is based upon negligence on the part of both parties, then apportion by a percentage the relative degrees of fault of the parties. The answer to Questions 1 and 2 as you gave them to us was, in fact, yes.

What we now want to know is did you answer yes because of a finding of negligence on the part of both parties, and if you did find negligence on the part of both parties we need to know the percentage of the relative degrees of fault of the parties and we need to hear it from the forelady."

The jury answered that it based its affirmative responses to special interrogatories 1 and 2 on the negligence of both parties and that they meant to apportion fault 85% to Holcomb & Salter and 15% to Whaley.

Discussion

In considering a motion for new trial, this Court must exercise its discretion and refrain from granting the motion unless the jury issues a verdict at least against the great weight of the evidence. James v. Glazer, Del.Supr., 570 A.2d 1150 (1990) (citing Storey v. Camper, Del.Supr., 401 A.2d 458 (1979). "An award should not be disturbed unless it is so clear as to show it was a result of passion, prejudice, partiality or corruption; or that it was manifestly in disregard of the evidence or applicable rules of law." Adamkiewicz v. Milford Diner, Del.Super., C.A. No. 90C-JA-23, 1991 WL 35709, Steele, J. (Feb. 13, 1991) (quoting Parker v. Kappel, Del.Super., C.A. No. 86C-OC-48, 1991 WL 15235, Herlihy, J. (Jan. 4, 1991)).

In this motion for new trial, the Court need only address two issues. The Court must first determine the purely legal matter concerning whether the DTPA properly applies to this case. A finding that the DTPA does not apply to this case will render improper any jury instructions and findings relating to the DTPA. The Court will then consider whether the specific notations on the jury's verdict sheet and responses to subsequent special interrogatories rendered the jury's verdict inconsistent and irreconcilable. The evidence produced at trial clearly sufficed to support the jury's finding with respect to the common law claims as well as the amount of damages awarded. No party argues to the contrary.

I. OBJECTIONS TO CHARGE ON DTPA

At trial, counsel for Holcomb & Salter took exception to the Court's initial charge on the Deceptive Trade Practices Act, 6 Del.C. § 2532(a) ("DTPA"). The jury submitted a note asking for clarification on the DTPA. Counsel for Holcomb & Salter then requested the Court read the entire statute to the jury. This section reads as follows:

§ 2532 Deceptive trade practices

(a) A person engages in a deceptive trade practice when, in the course of his business vocation, or occupation, he:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by another;

(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;

(6) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;

(7) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(8) Disparages the goods, services, or business of another by false or misleading representation of fact;

(9) Advertises goods or services with intent not to sell them as advertised;

(10) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(11) Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of, price reductions; or

(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.

A...