Marsha Whitlow v. Ron McConnaha, Jodi McConnaha, and Timothy Newton ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0566
Filed November 8, 2019
MARSHA WHITLOW,
Appellant,
vs.
RON McCONNAHA, JODI McCONNAHA, and TIMOTHY NEWTON,
Appellees.
------------------------------
RON McCONNAHA and JODI McCONNAHA,
Third-Party Plaintiffs,
vs.
TIMOTHY NEWTON,
Third-Party Defendant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Stuart P.
Werling, Judge.
Defendant exonerated in jury trial seeks further review of court of
appeals decision including him in retrial necessitated by error in the
verdict form affecting the other defendant. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT RULING AFFIRMED.
Pressley Henningsen and Benjamin P. Long of RSH Legal, P.C.,
Cedar Rapids, for appellant.
2
Patrick L. Woodward and Ryan F. Gerdes of McDonald, Woodward
& Carlson, P.C., Davenport, for appellees Ron McConnaha and Jodi
McConnaha.
3
WATERMAN, Justice.
In this appeal, we must decide whether the retrial of a comparative
fault action must include a defendant exonerated by the first jury. The
plaintiff was a passenger on her fiancé’s motorcycle and suffered personal
injuries in its collision with a farm tractor that was turning left while the
motorcyclist attempted to pass it on a county road. The plaintiff’s
negligence claims against the farmer and motorcyclist were submitted to
the jury. The first question asked whether the farmer was at fault, and
the jury answered “no.” The verdict form, in a mistake overlooked by all
counsel and the judge, instructed the jury to stop there, and the jury was
discharged without deciding whether the motorcyclist was at fault. The
plaintiff moved for a new trial against both defendants. The farmer
resisted, and the district court ordered a new trial against the motorcyclist
alone. The plaintiff appealed, and we transferred her case to the court of
appeals, which reversed and remanded the case for a new trial involving
both defendants. We granted the farmer’s application for further review.
On our review, we hold the district court correctly omitted the farmer
from the new trial. The error in the verdict form prevented the jury from
considering the negligence of the motorcyclist, but only after the jury had
exonerated the farmer, who should not have to suffer a retrial. Our
precedent and cases in other jurisdictions excuse an exonerated defendant
from a retrial when the jury’s no-liability finding is untainted by the error
affecting another party. Accordingly, we vacate the decision of the court
of appeals and affirm the district court’s ruling granting a new trial on the
plaintiff’s claims against the motorcyclist alone.
I. Background Facts and Proceedings.
The jury could find these facts from the trial record. On June 27,
2015, Marsha Whitlow was a passenger on a motorcycle operated by her
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fiancé, Timothy Newton, heading south on a paved, two-lane county road.
The weather was clear with no precipitation, and the pavement was dry.
The speed limit was fifty-five miles per hour. At about 4 p.m., Newton
approached a 1976 John Deere farm tractor operated by Ron McConnaha
towing a hay rake at ten to fifteen miles per hour in the same southbound
lane. The tractor’s hazard lights were flashing on the roof of the cab.
McConnaha slowed further and activated his left turn signal as he
approached a field entrance. He turned his tractor to the left to enter the
field while Newton’s motorcycle attempted to pass him in the oncoming
(northbound) lane. The motorcycle struck the tractor, and Whitlow
suffered severe injuries. Emergency personnel airlifted Whitlow to the
University of Iowa Hospitals and Clinics where she was treated for a
broken neck, leg fractures, rib fractures, and multiple contusions.
Whitlow filed this civil action against Ron McConnaha and his
spouse Jodi McConnaha, co-owners of the tractor. 1 Whitlow alleged Ron
McConnaha was negligent in operating his tractor, and his negligence
caused the accident. McConnaha filed a third-party contribution claim
against Newton, alleging his negligent operation of the motorcycle caused
Whitlow’s injuries, and Whitlow amended her petition to allege her own
direct negligence claim against her fiancé. The case proceeded to a six-
day jury trial that began on February 26, 2018. Without objection from
any party, the trial court submitted the case to the jury with the following
verdict form, which contained an unnoticed error in the bracketed
instruction immediately after the first question. 2
1TheMcConnahas were properly treated as one party for purposes of allocating
comparative fault. See Iowa Code § 668.3(2)(b) (2015).
2Whitlowhad proposed the correct verdict form for a comparative fault case with
multiple defendants, which states after question one, “[If your answer is no, do not answer
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We, the Jury, find the following verdict on the questions
submitted to us:
QUESTION NO. 1: Was Ronald McConnaha at fault?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is no, do not answer any further
questions and sign the verdict form. If your answer is yes,
answer Question No. 2.]
QUESTION NO. 2: Was the fault of Ronald McConnaha
a cause of any item of damage to the plaintiff?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is no, . . . do not answer any further
questions and sign the verdict form. If your answer is yes,
answer Question No. 3.]
QUESTION NO. 3: Was Timothy Newton at fault?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is no, do not answer Questions 4 or 5.
If your answer is yes, answer Question No. 4.]
QUESTION NO. 4: Was Timothy Newton’s fault a cause
of any item of damage to the plaintiff?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is no, do not answer Question No. 5. If
your answer is yes, answer Question No. 5.]
QUESTION NO. 5: Using 100% as the total combined
fault of Ronald McConnaha and Timothy Newton which was a
cause of plaintiff’s damage, what percentage of such combined
fault do you assign to Ronald McConnaha and what
percentage of such combined fault do you assign to Timothy
Newton?
ANSWER: Ronald McConnaha _______%
Timothy Newton _______%
TOTAL 100%
QUESTION NO. 6: State the amount of damages
sustained by plaintiff caused by Ronald McConnaha and/or
Timothy Newton’s fault.
(Emphasis added.) The jury unanimously answered “No” to question 1,
finding Ron McConnaha was not at fault. As instructed (erroneously), the
question 2.]” The court’s verdict captured language appropriate when the case involves
only the alleged fault of a single defendant.
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jury left the remaining questions unanswered and did not decide Newton’s
fault or award any damages. The foreperson signed the verdict form at the
bottom of the final page and returned it to the court on March 7. The court
discharged the jury and entered an order on March 8 noting the jury had
returned a verdict finding McConnaha was not negligent.
On March 12, Whitlow moved for a mistrial or new trial based on the
flawed verdict form. Whitlow acknowledged that none of the four lawyers
for the parties or the court caught the error before the case was submitted
to the jury or before the jury was discharged. Whitlow argued the jury’s
failure to answer the questions regarding Newton’s fault was tantamount
to a hung jury, requiring a mistrial. Alternatively, Whitlow sought a new
trial against both defendants on liability and damages. The district court
denied her motion for mistrial and granted a new trial as to Newton alone,
concluding the verdict was “complete and consistent” as to McConnaha
because he was “exonerated of all fault.” Whitlow appealed, and we
transferred the case to the court of appeals. 3
A three-judge panel of the court of appeals reversed and remanded
for a new trial on all issues, as to both Newton and McConnaha. The court
of appeals found Whitlow’s posttrial motions preserved error
notwithstanding her failure to object to the erroneous verdict form during
the instruction conference. The appellate court determined a complete
retrial is required because the question of the fault of the two drivers is
intertwined. We granted McConnaha’s application for further review.
II. Standard of Review.
We review the district court’s denial of a motion for mistrial for an
abuse of discretion. Kinseth v. Weil-McLain, 913 N.W.2d 55, 66 (Iowa
3Newton did not appeal the order granting a new trial, nor has he participated in
the appellate proceedings.
7
2018). “Our review of a district court’s ruling on a motion for new trial
depends on the grounds raised in the motion.” Bryant v. Parr, 872 N.W.2d
366, 375 (Iowa 2015). “When the ground for a new trial is inconsistency
of the jury verdict, we review for correction of errors at law.” Id. We
liberally construe jury verdicts to give effect to the intention of the jury.
Id. “Generally, we are reluctant to interfere with a jury verdict and give
considerable deference to a trial court’s decision not to grant a new trial.”
Jack v. Booth, 858 N.W.2d 711, 718 (Iowa 2015) (quoting Condon Auto
Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999)). “We are
slower to interfere with the grant of a new trial than with its denial.”
Bryant, 872 N.W.2d at 375 (quoting Cowan v. Flannery, 461 N.W.2d 155,
157 (Iowa 1990)).
III. Analysis.
We must decide whether the district court erred by granting a new
trial on Whitlow’s claim against Newton alone while denying her motion as
to McConnaha given that the jury found he was not at fault. 4 Whitlow
argues both drivers must be on the verdict form to compare their fault in
the retrial. We disagree. In our view, the error on the verdict form
prejudiced only Whitlow’s claim against Newton, without tainting the jury’s
finding as to McConnaha. Once the jury exonerated McConnaha, leaving
only Whitlow’s claims against Newton to be determined, there remained no
fault of more than one party to “compare” in the retrial. See Iowa Code
§ 668.3(2) (2015) (requiring jury to compare fault in trials “involving the
4We agree with the court of appeals and district court that Whitlow preserved error
notwithstanding her failure to object to the erroneous verdict form. She had proposed
the correct form, all counsel and the court overlooked the error in the verdict form
proposed by McConnaha and submitted by the court, and Whitlow timely moved for a
mistrial or new trial.
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fault of more than one party to the claim”). 5 Whitlow does not get her
proverbial second bite at the apple against McConnaha.
“The general rule is that when a new trial is granted, all issues must
be retried.” Bryant, 872 N.W.2d at 380 (quoting McElroy v. State, 703
N.W.2d 385, 389 (Iowa 2005)). But “[w]e may narrow the scope of the
retrial under some circumstances[.]” Id. For example, we have repeatedly
left liability findings intact and limited retrials to the issue of damages
when the jury awarded past medical expenses, awarded zero for pain and
suffering, and gave no indication of a compromise verdict on liability. See
id. (collecting cases). Thus, in Bryant, we left intact the jury’s liability
verdict that one driver was ninety-five percent at fault, the other driver was
faultless, and the plaintiff-passenger was five percent at fault and limited
the retrial to damages issues. Id. at 380–81 (noting “[n]o party contends
the liability findings are tainted by the jury’s determination of damages or
that the jury compromised on liability”). Here, we see no basis for
concluding that the jury’s finding that McConnaha was not at fault
resulted from a compromise verdict or was otherwise tainted by the
erroneous instruction on the verdict form.
A recent case provides guidance for limiting the scope of the retrial
to exclude a defendant that the jury found not at fault. In Mumm v. Jennie
Edmundson Memorial Hospital, we affirmed the district court’s ruling
denying a new trial in a medical malpractice action. 924 N.W.2d 512, 519–
5We remind counsel and trial courts to carefully scrutinize verdict forms before
submission. And the jury should not be discharged before the court ensures the verdict
is complete without inconsistencies that could be resolved by further deliberations under
Iowa Code section 668.3(6). Doing so avoids unnecessary retrials and appeals. See
Bryant, 872 N.W.2d at 377 (“To avoid repetition of this resource-wasting result, we repeat
[our] prior admonition that ‘[t]he trial court should not discharge the jury until it
determines the special verdict is consistent and supported by evidence.’ ” (quoting Clinton
Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 616 (Iowa
2006))).
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20 (Iowa 2019). The verdict form included the defendant-physician and a
released party. Id. at 515–16. During deliberations, the jury foreperson
sent a question to the court asking if the plaintiff’s recovery would be
reduced by fault attributed to the released party. Id. at 516. The jury
instructions were silent on that point, and plaintiff’s counsel urged the
court to answer “yes” to the question. Id. at 516–17. The district court
declined to give that answer or any supplemental instructions and told the
jury to “follow the instructions already given to you.” Id. at 517.
The jury returned a unanimous verdict finding the defendant-
physician was not negligent. Id. We held that any error in omitting the
requested supplemental instructions did not taint the jury’s no-liability
verdict. Id. at 519–20 (“Even if the supplemental instruction sought by
Mumm would have corrected a deficiency in the comparative fault
allocation instructions, Mumm suffered no prejudice because the jury
found unanimously that Dr. Mileris was not negligent.”). We reach the
same conclusion here that the jury’s no-negligence finding as to
McConnaha is untainted by the erroneous instruction on the verdict form,
and as an exonerated defendant, McConnaha does not have to undergo a
retrial.
Jack provides another example in which we required an exonerated
defendant to be excused from a retrial necessitated by the actions of
another defendant. 858 N.W.2d at 720–21. Mary Jack sued two
physicians for medical malpractice in connection with her surgical
procedure. Id. at 713. A juror fainted during the trial, and one defendant
assisted her while the other defendant remained on the witness stand. Id.
at 713, 717 n.5. Jack moved for a mistrial, arguing jurors would be biased
in favor of both defendants after viewing the one defendant-physician
aiding their fellow juror. Id. at 714–15. The district court excused the ill
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juror and denied Jack’s motion for mistrial. Id. at 715. The case was
submitted with separate jury instructions setting forth Jack’s separate
specifications of negligence against each defendant. Id. at 715–16. The
jury returned a defense verdict, finding neither physician at fault. Id. at
717. The district court denied Jack’s motion for a new trial, but the court
of appeals reversed and remanded the case for a new trial as to both
defendants. Id. Noting Jack’s separate specifications of negligence, we
upheld the jury verdict exonerating the one defendant and limited the new
trial to the defendant whose actions necessitated it. Id. at 721. We
rejected Jack’s argument that the liability issues were so intertwined as to
require a new trial against both defendants. Id. at 720.
We reach the same conclusion here—Whitlow alleged separate
specifications of negligence against each driver, and the jury was
instructed accordingly. Their alleged fault is not so intertwined as to
mandate a retrial of both defendants. 6 The jury was instructed to consider
all of the surrounding circumstances of the accident, “together with the
conduct of Ronald McConnaha and Timothy Newton.” And “we assume
that jurors follow the court’s instructions.” Auto. Underwriters Corp. v.
Harrelson, 409 N.W.2d 688, 691 (Iowa 1987). The verdict was complete
against McConnaha. The district court correctly ruled that the jury verdict
exonerated McConnaha and correctly excused him from the retrial against
Newton.
6A retrial against both defendants likely would be required if the jury found each
at fault. See Buffett v. Vargas, 914 P.2d 1004, 1010 (N.M. 1996) (“For example, if the
jury finds that Defendant A is sixty percent at fault and Defendant B is forty percent at
fault, and the appellate court decides that reversible error was committed as to Defendant
B, then Defendant A could be required to stand retrial if the jury likely would have
apportioned the fault differently had the error not been committed. . . . However, retrial
of Defendant A would not always be appropriate, especially when, as in this case, the jury
had exonerated the defendant.” (Citation omitted.)).
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In McIntosh v. Lawrance, the Oregon Supreme Court held that an
exonerated defendant should not be included in a retrial resulting from an
instructional error involving another defendant. 469 P.2d 628, 629 (Or.
1970) (en banc). The plaintiff-passenger injured in a two-car collision sued
the drivers, Lawrance and Jones. Id. A jury found each driver not
negligent, and the plaintiff moved for a new trial against both based on
erroneous jury instructions on the claim against Lawrance alone. Id. The
trial court granted the motion, and the Oregon Supreme Court reversed as
to Jones, reasoning that “[t]he questioned instructions related solely to
plaintiff’s case against the defendant Lawrance and, therefore, could not
have prejudiced [plaintiff’s] case against the defendant Jones.” Id.
Similarly, the error on the verdict form prejudiced Whitlow’s claim against
Newton alone, and the retrial is appropriately limited to that defendant.
We hold that the district court correctly limited the scope of the
retrial to Whitlow’s claim against Newton, thereby upholding the jury
verdict exonerating McConnaha.
IV. Disposition.
For these reasons, we vacate the decision of the court of appeals and
affirm the district court’s ruling denying Whitlow’s motion for mistrial and
granting Whitlow’s motion for a new trial against Newton alone. We
remand for entry of judgment on the jury verdict in favor of McConnaha
and for a new trial against Newton consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
RULING AFFIRMED.