Sandman v. Farmers Ins. Exchange

• Decision Date: 17 December 1998
• Docket Number: No. 98-289,98-289
• Citation: 1998 MT 286,291 Mont. 456,969 P.2d 277
• Parties: , 1998 MT 286 Linda K. SANDMAN, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE and Keith Booth, Defendants and Respondents.
• Court: Montana Supreme Court

Page 277

969 P.2d 277

291 Mont. 456, 1998 MT 286

Linda K. SANDMAN, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE and Keith Booth, Defendants and Respondents.

No. 98-289.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 1998.

Decided Nov. 24, 1998.

Rehearing Denied Dec. 17, 1998.

Daniel W. Hileman, Kaufman, Vidal & Hileman, Kalispell, Montana, for Appellant.

Shelton C. Williams, Williams & Ranney, Missoula, Montana, for Respondent.

NELSON, Justice.

¶1 Linda K. Sandman (Sandman) appeals from the February 12, 1998 Order and Rationale of the Eleventh Judicial District Court, Flathead County, denying her various alternative post-trial motions. We affirm.

Background

¶2 Sandman sued her insurer, Farmers Insurance Exchange (Farmers), claiming breach of contract, unfair claims settlement practices, fraud, and negligent infliction of emotional distress in connection with the settlement of her uninsured motorist claims. Following the commencement of litigation, Farmers paid $100,000 policy limits to Sandman who was injured in the underlying automobile accident and, separately, $100,000 policy limits on behalf of her infant son who died as a result of the accident. With Sandman's breach of contract claims settled as a result of Farmers payments to her, she amended her complaint to name Farmers' adjuster, Keith Booth (Booth), as an additional defendant.

¶3 The case was tried on Sandman's remaining claims and was submitted to the jury with a special verdict form. Question 5 on this verdict form asked: "Do you find by clear and convincing evidence that Defendants acted either fraudulently and or with malice?" This question was taken nearly verbatim from the special verdict form proposed by Sandman who posed Question 5 as follows: "Do you find by clear and convincing evidence that Defendants engaged in either fraud and/or malice." In retyping Sandman's Question 5, the "/" between the words "and" and "or" was deleted in the form of the question submitted by the court to the jury. ¹ Post-trial, Sandman characterized this as a typographical error and argued that it created confusion in the minds of the jurors. The record, however, contains no objection by her to the form of Question 5--i.e., without the "/"--at or prior to the time that the verdict form was submitted to the jury by the trial court.

¶4 During deliberations, the jury foreman submitted a question to the court concerning Question 5. The jury's inquiry stated: "Do we have to differencateate [sic] Between [sic] fraud and malice in # 5." Again, the record is void of any discussion between the court and counsel at the time this question was submitted as to if or how this question should be answered. While Sandman argued post-trial that there was discussion that this question should have been answered differently, this discussion is not of record. Rather, what is clear from the record is that, not only did the court respond "No" to the jury question, but also that neither Sandman nor the Defendants registered any contemporaneous objection to this answer.

¶5 The jury returned the special verdict form finding that Booth or Farmers engaged in unfair claims settlement practices; that Booth or Farmers engaged in fraudulent conduct; and that Booth or Farmers did not negligently cause Sandman to suffer emotional distress. The jury awarded total damages of$15,000 as a result of the Defendants' conduct. Finally, to Question 5--"Do you find by clear and convincing evidence that Defendants acted either fraudulently and or with malice?"--the jury answered "No." When polled by the bailiff, each juror, without comment, equivocation or explanation, stated that he or she had voted "No" on Question 5. The jury was thereafter discharged without objection.

¶6 Subsequently, Sandman filed alternative post-trial motions requesting the court to order that the answer to Question 5 is "Yes"; to set aside the jury verdict on Question 5; and either to enter judgment against Farmers and Booth on the issue of punitive damages as a matter of law or to grant her a new trial on the issue of punitive damages. Sandman based her motion on the affidavits of eight jurors. Each of these identical affidavits stated that, based upon the court's "No" answer to the jury question concerning Question 5, the juror determined that in order to answer "Yes" to Question 5, he or she had to find at least one of the Defendants acted both fraudulently and with malice. Each juror then concluded that because he or she did not find at least one of the Defendants acted both fraudulently and with malice, that the answer to Question 5 was "No."

¶7 In opposing Sandman's motion, Farmers and Booth submitted their own juror affidavits. Defendants obtained affidavits from five of the eight jurors from whom Sandman obtained affidavits. These affidavits, together with four more, stated, among other things, that the juror would not have awarded punitive damages in this case.

¶8 Following oral argument and briefing, the court denied Sandman's post-trial motions, ruling that the affidavits were not proper as the jury had not been subject to external influences, nor did it resort to chance. Moreover, the court rejected Sandman's substantive arguments on their merits; determined that there was conflicting evidence on the matters that would have supported a discretionary award of punitive damages; and noted that both parties had participated in the formulation of the verdict form and that neither party objected to the court's answer to the jury's question. Sandman timely appealed and the Defendants cross-appealed.

Issues

¶9 Sandman raises the following issues on appeal:

¶10 1. Whether the District Court erred in refusing to correct the jury's verdict under Rules 60(a) or (b), M.R.Civ.P.

¶11 2. Whether the District Court erred in refusing to correct the jury's verdict under Rule 50(b), M.R.Civ.P.

¶12 3. Whether the District Court erred in refusing to vacate the jury's verdict and order a new trial on either the issue of liability for or the amount of punitive damages pursuant to § 25-11-102, MCA, and Rule 59, M.R.Civ.P.

¶13 By way of cross-appeal, the Defendants raise two issues:

¶14 1. Whether the District Court erred in allowing Sandman to allege new claims on the eve of trial after the close of discovery.

¶15 2. Whether the District Court erred in failing to provide for separate findings against the Defendants on the verdict form.

¶16 We affirm issues 1 and 2 on the basis of the threshold issues of waiver and the propriety of the juror affidavits. Accordingly, we decline to address the merits of those issues. Furthermore, we do not find reversible error as to Sandman's issue 3 and, therefore, affirm as to that issue. Finally, having affirmed the decision of the trial court, we conclude that Defendants' cross-appeal issues are moot, and thus, we do not address those issues.

Discussion

I.

¶17 Whether the District Court erred in refusing to correct the jury's verdict under Rules 60(a), 60(b), or 50(b), M.R.Civ.P.

¶18 Sandman advances a number of arguments which she contends require the trial court to correct, mold, amend or reform the jury verdict based upon what she perceives to be the jury's mistake in not awarding punitive damages arising out of its alleged confusion over the form of Question 5, the court's "No" answer to the jury's question, and a lack of evidence supporting the jury's refusal to award punitive damages. She cites to the case law of other jurisdictions in arguing that the trial court has plenary authority to correct, mold, amend and reform a jury verdict to reflect the jury's true intent or true decision--which, in this case, she gleans from the eight juror affidavits. Sandman grounds her arguments in the provisions of Rules 60(a), 60(b)(6), and 50(b), M.R.Civ.P. Rule 60(a) allows the court to correct "clerical mistakes"; Rule 60(b)(6) allows the court to relieve a party from final judgment "for any other reason justifying relief from the operation of the judgment"; and Rule 50(b) allows the court to reopen a judgment and enter judgment as a matter of law or grant a new trial. We decline to address the merits of these arguments, however, as two threshold issues--waiver and propriety of the juror affidavits--preclude our further analysis.

Waiver

¶19 As previously noted, Sandman did not contemporaneously object to the special verdict form as submitted to the jury nor is there any record that she contemporaneously objected to the trial court's answer to the jury's question posed during its deliberations. Under these circumstances it would be entirely appropriate that we simply decline further analysis of Sandman's issues 1 and 2 on the basis that she waived her claims of error underlying the issues she now raises on appeal. See, for example, Wisher v. Higgs (1993), 257 Mont. 132, 143, 849 P.2d 152, 158, overruled on other grounds by Blackburn v. Blue Mountain Women's Clinic (1997), 286 Mont. 60, 951 P.2d 1(citation omitted) (holding that where no objection is raised to the special verdict form before its submission to the jury, this Court will not review the sufficiency of the form for the first time on appeal). Accord Greytak v. RegO Co. (1993), 257 Mont. 147, 152, 848 P.2d 483, 486. See also State v. White Clay, 1998 MT 244, p 24, 291 Mont. 147, p 24, 967 P.2d 370, p 24, 55 St. Rep. 1014, p 24 (holding that defendant's claim of error was waived even though raised in a post-trial motion where there was no objection to the court's actions in responding to the statement of the jury foreperson on behalf of another juror and where counsel affirmatively agreed to the court's recommendations regarding how to respond and actively acquiesced in the procedure); Seder v. Peter Kiewit Sons' Co. (1971), 156 Mont. 322, 327-28, 332-33, 479 P.2d 448, 450-51, 453 (where, during deliberations and in violation of applicable statutes the court orally answered the jury's written question and...