Lowman v. State Farm Mut. Auto. Ins. Co. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/26/2016 08:20 AM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
Opal Lowman and David Lowman, appellants,
v. State Farm Mutual Automobile
Insurance Company, appellee.
___ N.W.2d ___
Filed February 26, 2016. No. S-14-823.
1. Verdicts: Juries: Appeal and Error. A jury’s verdict may not be set
aside unless clearly wrong, and a jury verdict is sufficient if there is
competent evidence presented to the jury upon which it could find for
the successful party.
2. Damages: Appeal and Error. On appeal, the fact finder’s determination
of damages is given great deference.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed.
Ronald J. Palagi and Donna S. Colley for appellants.
Paul M. Shotkoski and Jacqueline M. DeLuca, of Fraser
Stryker, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Heavican, C.J.
INTRODUCTION
Opal Lowman and her husband, David Lowman, sued State
Farm Mutual Automobile Insurance Company (State Farm)
for injuries Opal suffered in an automobile accident. The jury
entered a verdict for the Lowmans, but awarded no damages.
The Lowmans appeal. We affirm.
- 883 -
Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
FACTUAL BACKGROUND
Opal was injured in an automobile accident on May 8, 2010,
when a vehicle driven by Carla Gibbs collided with Lowman’s
vehicle. On November 9, 2012, the Lowmans filed an amended
complaint against State Farm, seeking damages for Opal’s inju-
ries. State Farm provided the Lowmans’ underinsured motor-
ist coverage.
Prior to trial, State Farm admitted that Gibbs was negli-
gent. The matter went to trial on the question of causation
and damages. At trial, Lowman withdrew her claim for loss of
earning capacity and admitted that all of her medical bills had
been paid. The Lowmans’ counsel argued only that Opal was
entitled to damages for pain and suffering.
The matter was submitted to the jury. The jury was instructed
that in order to recover, the Lowmans must prove that the acci-
dent was the proximate cause of “some damage” to Opal and
David, and the nature and extent of that damage. The instruc-
tion continued:
If the Plaintiffs [the Lowmans] have met their burden
of proof, then your verdict must be for the Plaintiffs, and
you should complete Verdict Form No. 1.
If the Plaintiffs have not met their burden of proof,
then your verdict must be for the Defendant [State Farm]
and you should complete Verdict Form No. 1.
The jury was provided with only one verdict form. This form,
as provided to the jury, was preprinted with the following
language: “We, the jury, duly impaneled and sworn in the
above-entitled cause, do find for the said Plaintiffs and award
damages in the amount of $____.”
On May 6, 2014, after deliberating, the jury returned a
verdict for the Lowmans in the amount of $0. The Lowmans
subsequently filed a motion for new trial on May 15. That
motion was overruled.
The Lowmans appeal.
- 884 -
Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
ASSIGNMENTS OF ERROR
On appeal, the Lowmans assign that the district court erred
in (1) receiving the jury’s verdict in favor of them but awarding
them $0, and in rendering judgment for them, and (2) denying
the motion for new trial.
STANDARD OF REVIEW
[1,2] A jury’s verdict may not be set aside unless clearly
wrong, and a jury verdict is sufficient if there is competent
evidence presented to the jury upon which it could find for the
successful party.1 On appeal, the fact finder’s determination of
damages is given great deference.2
ANALYSIS
The primary issue presented by this appeal is whether the
jury verdict in favor of a plaintiff can be sustained where the
jury awarded a plaintiff no money damages. We conclude that
on these facts, such a verdict can be sustained.
We first addressed this basic issue in Ambrozi v. Fry,3
wherein the jury returned a verdict for the plaintiff but awarded
“‘$ none’” in damages. The trial court sent the verdict back,
informing the jury that if it found for the plaintiff, it must
award some damages. The jury accordingly awarded $75.
The plaintiff then sought a new trial, which was granted. The
defend­ant appealed, arguing that the trial court erred in sending
the verdict back and instead should have considered the verdict
to be one for the defendant.
We disagreed. We first concluded that it was clear the jury
intended to find for the plaintiff and award no damages and
that it was proper for the court to seek to have that verdict
corrected. We ultimately affirmed the grant of the new trial,
1
See Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
2
Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
3
Ambrozi v. Fry, 158 Neb. 18, 19, 62 N.W.2d 259, 261 (1954).
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Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
but that was based on our determination that the plaintiff
clearly suffered more than $75 in injuries and that the jury’s
award was inadequate.
We revisited the issue in Bushey v. French,4 wherein the jury
found for the plaintiff, but awarded “‘$ No Money.’” The trial
court then entered a judgment for the defendant, and the plain-
tiff appealed. Relying on Neb. Rev. Stat. § 25-1119 (Reissue
1956), which provided that “[w]hen . . . either party is entitled
to recover money . . . the jury . . . must assess the amount of
recovery,” as well as cases from other jurisdictions, we held
that a verdict finding for the plaintiff but awarding no damages
“confers no authority to enter a judgment upon it.”5
The Nebraska Court of Appeals also addressed this issue in
Swiercek v. McDaniel.6 In that case, as with the others, a ver-
dict was entered for the plaintiff for $0. The plaintiff sought a
new trial on the grounds that the verdict was “clearly against
the weight and reasonableness of the evidence and dispropor-
tionate to the injuries proved.”7 That request was denied, and
the plaintiff appealed.
On appeal, the Court of Appeals noted that “negligence on
the part of [the defendant] was established as a matter of law.
However, [the plaintiff] must still prove that this negligence
on the part of [the defendant] proximately caused the dam-
ages alleged to have been sustained by him.”8 The Court of
Appeals continued:
[T]he intent of the jury here is unmistakable—its deci-
sion was that [the plaintiff] have nothing from [the
defendant]. Next, this is not a case where the question
4
Bushey v. French, 171 Neb. 809, 810, 108 N.W.2d 237, 238 (1961).
5
Id. (citing Klein v. Miller, 159 Or. 27, 77 P.2d 1103 (1938)).
6
Swiercek v. McDaniel, No. A-93-1059, 1995 WL 640419 (Neb. App. Oct.
31, 1995) (not designated for permanent publication).
7
Id. at *5.
 8
Id.
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Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
of liability was for the jury, and [the plaintiff] adduced
undisputed evidence of damages for injuries sustained.
In such a case, a verdict for plaintiff in the amount of
$0 is contrary to the law and a nullity. . . . Here, the
question of liability was directed in favor of [the plain-
tiff] with the only issue for the jury being whether [the
plaintiff] suffered any injury or damage. The jury could
have found all of [the plaintiff’s] injuries were attributed
to his preexisting conditions. It was not unreasonable
for the jury to have concluded that it must find “for”
[the plaintiff], even though it found he was entitled to
zero damages.9
The rule in Nebraska, as set forth by Bushey v. French,10 is
that a verdict for a plaintiff but awarding no damages is no ver-
dict at all. The reason that such a verdict is generally no verdict
at all is that it does not allow a court to determine what the jury
meant by its verdict.
But in this case, like Swiercek v. McDaniel,11 when one
examines how this case was tried, it is clear what the jury
meant by its verdict.
At trial, the Lowmans sought compensation only for Opal’s
pain and suffering, telling the jury that “[t]here is no claim
. . . for past or future medical bills because those will be paid
by other sources. . . . And there’s going to be no claim for
lost wages.” The Lowmans’ counsel informed the jury that if
it did not find that Opal was entitled to damages for her pain
and suffering, then it should award her nothing, stating, “If
you think [Opal] is exaggerating, there should be no verdict.
If you think she’s a liar, a cheat and a fraud, there should be
no verdict.” The jury was then instructed that it could find for
the Lowmans or for State Farm.
9
Id. at *8.
10
Bushey v. French, supra note 4.
11
Swiercek v. McDaniel, supra note 6.
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Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
The verdict for the Lowmans makes sense because it was
not disputed that the accident itself was caused by Gibbs’
tortious conduct. The jury’s award of no damages makes sense
because the Lowmans told the jury not to award Opal anything
if it did not believe that she suffered compensable damages for
pain and suffering caused by the accident. This conclusion is
supported by evidence presented at trial.
On these facts, it was not error for the district court to enter
judgment on the jury’s verdict. For these reasons, the district
court also did not err in denying the Lowmans’ motion for new
trial. Lowman’s argument on appeal is without merit.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
Cassel, J., concurring.
I write separately only to suggest that trial judges should
provide one or more verdict forms which precisely correspond
to the effect-of-findings jury instruction. In the case before us,
no objection was made to the instruction or the verdict form.
No error is assigned to either of them on appeal. But if the ver-
dict form had been tailored to the instruction, I doubt that this
appeal would have been taken.
The court’s opinion, with which I fully agree, sets forth the
verbatim language of the effect-of-findings instruction. The
instruction permitted a verdict for the plaintiffs or a verdict for
the defendant. In either event, the jury was directed to the same
verdict form.
But the verdict form did not precisely adhere to the lan-
guage of the effect-of-findings instruction. As the court’s opin-
ion recites, the form consisted of a single sentence finding for
the plaintiffs and awarding damages in an amount left blank.
Thus, the verdict form provided the jury with the means of
precisely recording only one of the options authorized by
the instruction.
- 888 -
Nebraska A dvance Sheets
292 Nebraska R eports
LOWMAN v. STATE FARM MUT. AUTO. INS. CO.
Cite as 292 Neb. 882
The problem could have been avoided easily in either of
two ways. One way would have been to use two verdict forms.
But even if only one verdict form was to be used, the same
result could have been achieved. The single form could have
provided two choices, each with a box or blank to be checked
by the jury to indicate its choice. One choice could have been a
sentence employing the language used in the instant case. The
other choice could have been language specific to a verdict for
the defendant. Either approach would have tailored the verdict
form or forms to the effect-of-findings instruction, and likely
avoided an appeal.