Hardy v. Berisha, 82-279

• Docket Nº: No. 82-279
• Citation: 474 A.2d 93, 144 Vt. 130
• Case Date: February 03, 1984
• Court: United States State Supreme Court of Vermont

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474 A.2d 93 144 Vt. 130 Robert A. HARDY
v.
Ismet BERISHA. No. 82-279. Supreme Court of Vermont. Feb. 3, 1984.

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[144 Vt. 132] Jeremy Dworkin and Michael Rubin, South Londonderry, for plaintiff-appellant.

Jean Brewster Giddings and J. Eric Anderson of Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro, for defendant-appellee.

Before [144 Vt. 130] BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

[144 Vt. 132] BILLINGS, Chief Justice.

Plaintiff appeals from a jury verdict in favor of the defendant. After a trial on his tort claim for damages arising from an automobile collision with the defendant, the jury found plaintiff 52% negligent and defendant 48% negligent, with the negligence of each a proximate cause of the accident. Under Vermont's comparative negligence law, 12 V.S.A. § 1036, this verdict resulted in a zero damage award for plaintiff. Plaintiff moved for a new trial, which was denied by the court after hearing.

On appeal, plaintiff claims two errors: (1) that the court, in denying his motion for a new trial, abused its discretion; and (2) that opposing counsel improperly raised the issue of defendant's insurance coverage during closing argument.

In its order denying plaintiff's motion for a new trial, the court stated:

Based upon the evidence in the light most favorable to the verdict the court denies the plaintiff's Motion ....

Plaintiff contends that by viewing the evidence in the light most favorable to the verdict the court used the standard applicable[144 Vt. 133] in determining motions for directed verdicts and judgments notwithstanding the verdict but not applicable to motions for new trials. Citing a number of federal court decisions, he argues that the use of this standard in a motion for new trial is reversible error because it prevents a judge from exercising his or her own independent judgment when considering the evidence in the case.

Plaintiff also points to the lack of findings in the judge's order denying his motion as further or alternate evidence of an abuse of discretion. At the trial level, one of plaintiff's grounds for his motion was the mention of defendant's insurance coverage made by defendant's attorney during closing argument. Plaintiff's objection was made at the end of defense counsel's argument rather than at the time the offending statements were made. During the hearing on the motion for new trial, the judge questioned whether plaintiff had

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waived his objection by waiting until the end of defendant's closing argument. Plaintiff now contends that the judge's failure to make a finding on the issue of the improper remarks indicates the judge believed plaintiff had waived his objection and therefore the judge did not consider the statements when ruling on plaintiff's motion.

Plaintiff's last ground, for claiming an abuse of discretion, is that the verdict was not supported by the evidence.

A motion for a new trial, V.R.C.P. 59(a), rests solely with the discretion of the trial court. Hoague v. Cota, 140 Vt. 588, 591, 442 A.2d 1282, 1284 (1982). In contrast, motions for directed verdict, V.R.C.P. 50(a), and motions for judgment notwithstanding the verdict, V.R.C.P. 50(b), are mandated by law. Ryan v. Old Fox Chemical Co., 139 Vt. 259, 260, 427 A.2d 371, 372 (1981). Plaintiff is correct that motions for directed verdict and judgment notwithstanding the verdict require consideration of the evidence in the light most favorable to the verdict. Id.; Beaucage v. Russell, 127 Vt. 58, 60, 238 A.2d 631, 633 (1968). Similarly, however, a judge may not exercise his or her discretion in ruling on a motion for new...