[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10587
Non-Argument Calendar
____________________
LEXIE HANDLEY,
Plaintiff-Appellee,
versus
WERNER ENTERPRISES INC.,
Defendant-Appellant,
ACE AMERICAN INSURANCE COMPANY,
Defendant.
____________________
2 Opinion of the Court 23-10587
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cv-00235-WLS
____________________
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Werner Enterprises, Inc. (Werner)
owned the tractor-trailer truck that Plaintiff-Appellee Lexie Hand-
ley collided with on September 20, 2019. After the jury unani-
mously entered a verdict in favor of Handley, Werner filed a Mo-
tion for Judgment as a Matter of Law under Federal Rule of Civil
Procedure 50(a), Renewed Motion for Judgment as a Matter of Law
under Federal Rule of Civil Procedure 50(b), and Motion for a New
Trial under Federal Rule of Civil Procedure 59. The district court
denied all three motions. Werner argues that Handley did not
meet her burden of establishing negligence, the decision goes
against the weight of the evidence, and that the district court im-
properly informed the jury that Werner had insurance. After a
careful review of the record, we AFFIRM.
I. Background
On September 20, 2019, Handley collided with a tractor-
trailer owned by Werner and driven by its employee, Joseph
Krisak. After suffering severe injuries, Handley sued Werner and
ACE American Insurance Company (ACE) for Georgia tort law
claims in state court. The defendants removed the action to federal
23-10587 Opinion of the Court 3
court based on diversity jurisdiction. Handley’s vicarious liability
claim against Werner alleged that Krisak’s negligent attempt to
turn left on a five-lane highway caused the Werner tractor-trailer
to stop in the left passing lane. Handley alleged that, but-for the
stopped tractor-trailer, no accident would have occurred. Werner
and ACE both moved for summary judgment. The court granted
ACE’s motion because ACE was an excess liability insurance car-
rier and therefore not a proper defendant for a direct action. How-
ever, the court denied Werner’s motion, and Handley’s claim
against Werner proceeded to trial in May 2022.
At trial, Werner moved for judgment as a matter of law at
the end of Handley’s case, asserting that Handley had produced in-
sufficient evidence to show a causal link between her injuries and
Werner’s alleged breach. The court did not grant or deny the mo-
tion but took it under advisement. At the close of all evidence,
Werner again moved for judgment as a matter of law on the same
grounds as the earlier Rule 50(a) motion. The district court indi-
cated that it would reserve its decision on the motion and sent the
case to the jury. The jury returned a unanimous verdict in favor of
Handley and found $6,000,000 in damages. The jury apportioned
the fault 60% to Werner and 40% to Handley.
After receiving the verdict, Werner’s counsel noticed that
the verdict form the jury received improperly named both Werner
and ACE as defendants. The erroneous caption only appeared on
the verdict form. Each set of jury instructions used the proper cap-
tion. Immediately, the court instructed the jurors to determine
4 Opinion of the Court 23-10587
whether their verdict was directed to Werner only or to Werner
and ACE. After six minutes, the jury said Werner only. Werner’s
counsel moved for mistrial.
After the dismissing the jury, the district court did not for-
mally enter the jury’s verdict. The district court asked both parties
for supplemental briefing. It is unclear whether the district court
intended for this supplemental briefing to relate only to the motion
for mistrial. On June 3, 2022, Werner submitted two separate sup-
plemental briefs. One brief related to a motion for mistrial and in-
cluded a footnote that the brief was not intended as the Rule 59
motion for a new trial. The other brief related to judgment as a
matter of law under Rule 50(a) and included additional justifica-
tions beyond Werner’s oral motions, such as the doctrine of
“avoidable consequences.” On June 10, 2022, Handley filed a single
response brief, which only addressed the motion for a mistrial and
did not cite any procedural rules.
On June 17, 2022, the district court denied mistrial and en-
tered the jury’s verdict. The order issued that day did not mention
Rule 50. On July 15, 2022, Werner filed a renewed motion for judg-
ment as a matter of law under Rule 50(b) or alternative Rule 59
motion for a new trial. 1 Handley’s response mentioned both Rule
59 and Rule 50(b). Since the district court had never ruled on the
Rule 50(a) motion, the district court reviewed and denied all three
1 The district court appeared to use JMOL A and JMOL B to refer to Werner’s
first and second motions. Instead, we will use Rule 50(a) and Rule 50(b) to
identify each motion.
23-10587 Opinion of the Court 5
motions—under Rule 50(a), Rule 50(b), and Rule 59—in its Febru-
ary 7, 2023, order. Werner timely appealed.
II. Standard of Review and Applicable Law
We review the district court’s ruling on a motion for judg-
ment as a matter of law de novo and apply the legal standard used
by the district court. McGinnis v. Am. Home Mortg. Servicing, Inc.,
817 F.3d 1241, 1254 (11th Cir. 2016). A motion for judgment as a
matter of law may be granted when “a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party on
that issue.” Fed. R. Civ. P. 50(a)(1). We use the same standard for
reviewing motions for judgment as a matter of law under both
Rule 50(a) and Rule 50(b). McGinnis, 817 F.3d at 1254. Renewed
motions for judgment as a matter of law under Rule 50(b) must be
made on the same grounds as the initial motions under Rule 50(a).
Id. at 1260. We recognize the potential harshness of this rule and
therefore use a liberal approach “when confronting grounds that
are ‘closely related’ to those raised in an initial” motion for judg-
ment as a matter of law. Id. at 1261. When determining if the ver-
dict has sufficient supporting evidence, we “evaluate all the evi-
dence, together with any logical inferences, in the light most favor-
able to the non-moving party.” Beckwith v. City of Daytona Beach
Shores,
58 F.3d 1554, 1560 (11th Cir. 1995).
We review a denial of a motion for a new trial for abuse of
discretion. Lipphardt v. Durango Steakhouse of Brandon, Inc.,
267 F.3d
1183, 1186 (11th Cir. 2001). A motion for a new trial should be
granted when either “the verdict is against the clear weight of the
6 Opinion of the Court 23-10587
evidence or will result in a miscarriage of justice.”
Id. (quoting
Hewitt v. B.F. Goodrich, Co.,
732 F.2d 1554, 1556 (11th Cir. 1984)). A
judge should only grant a new trial when “the verdict is against the
great—not merely the greater—weight of the evidence.”
Id.
In a diversity case such as this, we apply the substantive law
of the forum state, so we apply Georgia’s substantive law here. See
Sutton v. Wal-Mart Stores E., LP,
64 F.4th 1166, 1168 (11th Cir. 2023).
III. Arguments on Appeal
Werner raises a few arguments on appeal. First, Werner ar-
gues that it is entitled to judgment as a matter of law either because
Handley did not establish negligence or under the doctrine of
avoidable consequences. Alternatively, Werner argues that it is en-
titled to a new trial. We will address each argument in turn.
a. Judgment as a Matter of Law
First, Werner argues that Handley produced insufficient ev-
idence for a reasonable jury to find for her on negligence. Under
Georgia tort law, Handley bore the burden of proving that Werner
(1) owed a duty to Handley; (2) Werner breached this duty; (3) this
breach caused Handley’s injury; and (4) Handley suffered damages.
See Heston v. Lilly,
546 S.E.2d 816, 818 (Ga. Ct. App. 2001). Werner
and Handley dispute causation.
Undoubtedly, the evidence about the accident is conflicting.
Handley admitted a murky memory of the moments leading up to
the crash. The police report assigned fault to Handley but listed
the tractor-trailer as being in the left travel lane and lacked witness
23-10587 Opinion of the Court 7
statements. The jury heard witness testimony from Albert Ed-
monds who consistently maintained that Krisak drove erratically
and appeared lost on the day of the accident. Krisak’s trial testi-
mony indicated that he was driving based on a map and verbal di-
rections and was hit as he was changing lanes. When all evidence
is viewed in the light most favorable to Handley, the jury had suf-
ficient evidence to reasonably reach its verdict. The district court
properly denied Werner’s motion for judgment as a matter of law
regarding negligence.
Second, Werner argues it should have received judgment as
a matter of law under the doctrine of avoidable consequences.
Werner frequently conflates causation and avoidable conse-
quences. In Georgia, the doctrine of avoidable consequences is an
affirmative defense, whereby “[t]he defendant has the burden of
proving that the plaintiff by ordinary care could have avoided the
consequences caused by the defendant’s negligence.” Reed v. Caro-
lina Cas. Ins. Co.,
762 S.E.2d 90, 94 (Ga. Ct. App. 2014). Avoidable
consequences is an incomplete defense. O.C.G.A § 51-11-7.
Handley argues that we should not consider Werner’s argu-
ment about avoidable consequences because Werner first used the
phrase in its supplemental briefs—not in its oral Rule 50(a) mo-
tions. Werner’s oral motions for judgment as a matter of law fo-
cused exclusively on causation. Handley alleges that the supple-
mental briefing was not related to the Rule 50(a) motions, which
means that there was no mention of “avoidable consequences” to
renew in a Rule 50(b) motion. We do not need to determine which
8 Opinion of the Court 23-10587
motion the supplemental briefing related to because, either way,
Werner did not meet its burden of showing the affirmative defense
of avoidable consequences applies.
As the defendant, Werner bore the burden of proof regard-
ing avoidable consequences. We consider granting judgment as a
matter of law in favor of a party bearing the burden of proof an
“extreme step” which “can be done only when the evidence favor-
ing the claimant is so one-sided as to be of overwhelming effect.”
United States EEOC v. Massey Yardley Chrysler Plymouth, Inc.,
117 F.3d
1244, 1250 (11th Cir. 1997). Werner uses the phrase “avoidable
consequences” but never states or proves the elements of the af-
firmative defense. Werner’s brief also repeatedly refers to Hand-
ley’s statement about taking her eyes off the road for five seconds
prior to the accident. This is not enough, especially on an issue for
which Werner bears the burden of proof. The district court
properly denied Werner’s renewed motion for judgment as a mat-
ter of law regarding avoidable consequences.
b. New Trial
Werner argues that the district court should have granted its
motion for a new trial. First, Werner asserts that inadvertently in-
cluding ACE in the verdict form’s caption should automatically ne-
cessitate a new trial. Werner cites language that states “[i]n an or-
dinary negligence case, not only is a liability insurance policy of a
litigant not admissible in evidence, but disclosure to the jury of the
mere existence of such contract is ground for a mistrial.” Cent. of
Ga. R.R. Co. v. Wooten,
295 S.E.2d 369, 372 (Ga. Ct. App. 1982)
23-10587 Opinion of the Court 9
(quoting City Council of Augusta v. Lee,
264 S.E.2d 683, 687 (Ga/ Ct.
App. 1980)). Other Georgia cases have interpreted this as permis-
sive not mandatory. Denton v. Con-Way S. Express,
402 S.E.2d 269,
270 (Ga. 1991), disapproved of on other grounds by Grissom v. Gleason,
418 S.E.2d 27 (Ga. 1992) (“[A] litigant’s insurance policy is not only
inadmissible, it can be the ground for a mistrial.”). Generally, these
cases involve evidence of a party having insurance being consid-
ered by the jury. A case caption is not evidence.
We have previously reviewed a scrivener’s error on a verdict
form in combination with correct information on jury instructions
for plain error. Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322,
1330–31 (11th Cir. 1999). Since the jury instructions in Farley used
the proper terminology, reading the verdict form “in conjunction
with the comprehensive and correct jury instruction” made the er-
ror harmless.
Id. at 1331. Here, reading the erroneous case caption
in conjunction with the correct case caption on the jury instruc-
tions—especially with proper party names given in oral jury in-
structions and throughout the four-day trial—clarified the proper
parties in this case.
Further, we presume that juries follow the instructions they
receive. Evans v. Michigan,
568 U.S. 313, 328 (2013). Here, the jury
received instructions to not consider insurance during delibera-
tions. Later, the error on the verdict form was pointed out imme-
diately after the jury returned its verdict. When the court told the
jury to review whether its verdict applied to only Werner or both
Werner and ACE, it returned to say only Werner within six
10 Opinion of the Court 23-10587
minutes. The erroneous caption is at most harmless error. Thus,
the district court did not abuse its discretion in denying Werner’s
motion for a new trial based on the erroneous caption. 2
Second, Werner argues in the alternative that it is entitled to
a new trial under Rule 59. Motions for new trials under Rule 59
will only be granted when the verdict was “against the clear weight
of the evidence or will result in a miscarriage of justice.” Lipphardt,
267 F.3d at 1186 (quoting Hewitt,
732 F.2d at 1556).
The underlying verdict is neither against the clear weight of
the evidence nor a miscarriage of justice. To argue about the
weight of evidence, Werner cites Johnson v. FFE Transportation Ser-
vices Inc.,
227 F. App’x 780 (11th Cir. 2007), a rear end collision case.
But the similarities end there. The jury in Johnson found the de-
fendant 0% at fault and the plaintiff 100% at fault. Id. at 782. In
contrast, the jury here allocated 60% of the fault to Werner and
40% of the fault to Handley. Completely assigning fault to the
plaintiff in Johnson was against the clear weight of the evidence in
that case, but the split allocation of fault here is not clearly wrong.
Overall, the record does not indicate that the decision is against the
great weight of the evidence or results in a miscarriage of justice.
2 Werner’s assertion that the erroneous case caption exposed the jury to the
existence of an insurance contract seems undermined by Werner’s own Ex-
hibit A: the police report from the accident. Werner prepared Exhibit A and
redacted the drivers’ dates of birth and Krisak’s telephone number. Werner
did not redact any information about insurance. Instead, Werner left the lines
listing ACE as the insurance company and policy number visible to members
of the jury.
23-10587 Opinion of the Court 11
Therefore, the district court did not abuse its discretion in denying
a new trial to Werner under Rule 59.
IV. Conclusion
For the reasons discussed above, we affirm the district
court’s denial of Werner’s motions for judgment as a matter of law
under Rule 50 and motion for a new trial under Rule 59.
AFFIRMED.
