Roof Service of Bridgeport, Inc. v. Robert Trent and Charlott Trent

No. 19-0200 Roof Service of Bridgeport, Inc. v. Robert Joseph Trent and
Charlotte Trent
FILED
Armstead, Chief Justice, concurring, in part, and dissenting, December 21, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
in part, joined by Justice Jenkins: OF WEST VIRGINIA
I concur with much of the majority opinion. I dissent, however, because I
believe that the verdict form was inconsistent with the circuit court’s independent
contractor instructions and failed to reflect the law and the evidence regarding whether Mr.
Wilfong was acting as an independent contractor at the time of the accident. I believe that,
with respect to this aspect of the verdict form, the circuit court abused its discretion and
committed plain error.
“Rule 49 of the West Virginia Rules of Civil Procedure governs the
submission of special verdict forms to a jury in a civil case.” Adkins v. Foster, 195 W. Va.
566, 572, 466 S.E.2d 417, 423 (1995) (per curiam). It provides that a “court may submit
to the jury, together with appropriate forms for a general verdict, written interrogatories
upon one or more issues of fact the decision of which is necessary to a verdict.” W. Va.
R. Civ. P. 49(b) [1998]. As Rule 49(b) suggests, circuit courts have “considerable
discretion” in deciding whether to submit interrogatories to juries and how they frame such
interrogatories. Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West
Virginia Rules of Civil Procedure § 49(b)[2][a]-[b], at 1170-71; accord Adkins, 195 W.
Va. at 572, 466 S.E.2d at 423. Nevertheless, when a circuit court decides to issue written
interrogatories to the jury, it has an express obligation to provide necessary guidance.
According to Rule 49(b), “[t]he court shall give such explanation or instruction as may be
necessary to enable the jury both to make answers to the interrogatories and to render a
general verdict. . . .” (emphasis added).
When a petitioner challenges a verdict form on appeal, we consider the
combined effect of the verdict form and the circuit court’s instructions to determine
whether the circuit court complied with Rule 49(b). As the majority observes, “the
criterion for determining whether [a circuit court’s] discretion is abused is whether the
verdict form, together with any instruction relating to it, allows the jury to render a verdict
on the issues framed consistent with the law, with the evidence, and with the jury’s own
convictions.” Adkins, 195 W.Va. at 572, 466 S.E.2d at 423 (emphasis added). Because of
this standard, not every issue raised in the instructions must be addressed a second time on
the verdict form. See Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 539–40,
694 S.E.2d 815, 872–73 (2010); Carper v. Kanawha Banking & Tr. Co., 157 W. Va. 477,
513, 207 S.E.2d 897, 919 (1974). However, the circuit court has an obligation to equip the
jury to render a verdict. Written interrogatories are a tool for clarifying the issues, not
obfuscation. Carper, 157 W. Va. at 513, 207 S.E.2d at 919 (“In any case, not required by
statute, interrogatories should be used cautiously and only to clarify rather than to obfuscate
the issues involved.”). When the circuit court’s instructions and the verdict form, taken
together, fail to equip the jury to render a verdict on the issues, as framed for them by the
law and the evidence, the circuit court abuses its discretion and fails to comply with Rule
49(b). See, e.g., Lively v. Rufus, 207 W. Va. 436, 445, 533 S.E.2d 662, 671 (2000) (“[W]e
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conclude that the circuit court abused its discretion in submitting to the jury an
interrogatory that was inconsistent with and contradictory to the law and the jury
instructions, and otherwise obtuse.”).
In this case, Roof Service endeavored to show that Mr. Wilfong was acting
as an independent contractor at the time of the accident, and Mr. Trent attempted to show
that Mr. Wilfong was acting as Roof Service’s employee. Because of this dispute, the
circuit court provided a number of instructions regarding employees, independent
contractors, and agents. However, the verdict form asked only one question relating to
Roof Service’s responsibility for Mr. Wilfong’s negligent acts: “Do you find by a
preponderance of the evidence that Bruce A. Wilfong was acting as an employee of
Defendant, Roof Service of Bridgeport, Inc., within his scope of employment at the time
of the accident in question?” In my view, this question—which ignored Mr. Wilfong’s
alleged status as an independent contractor—was inconsistent with the circuit court’s
extended discussion of the differences between employees, independent contractors, and
agents. Indeed, I believe that it was wholly inadequate as a means of framing the
independent contractor issue for the jury.
This inadequacy stems from the circuit court’s related instructions. Though
the instructions informed the jury about what it means to be an employee, an independent
contractor, or an agent, neither the instructions nor the verdict sheet ever stated a crucial
piece of information the jury needed to know in order to render a verdict on Roof Service’s
alleged liability to Mr. Trent: the fact that if Mr. Wilfong was an independent contractor
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at the time of the accident, then he was neither an employee nor an agent of Roof Service. 1
Without that information, clearly communicated, the jury lacked proper context to state
whether Mr. Wilfong was an employee of Roof Service and acting in the scope of his
employment. Because of this, the jury’s response to the circuit court’s single interrogatory
cannot be viewed as a response to the threshold question whether Mr. Wilfong was acting
as an independent contractor when he struck Mr. Trent with his vehicle. Indeed, this Court
has no way of knowing whether the jury’s response reflected a finding that Mr. Wilfong
was not an independent contractor or a misunderstanding about how to render a verdict on
this issue.
This oversight could have been easily remedied with a proper interrogatory
regarding Mr. Wilfong’s alleged status as an independent contractor. Such an interrogatory
was plainly lawful, because it had the potential to exempt Roof Service from liability.
Interrogatories “must be of such a character that the answers thereto, if contrary to the
general verdict, would control the same and be conclusive of the issue.” Syl. Pt. 30, Kerr
v. Lunsford, 31 W. Va. 659, 8 S.E. 493 (1888). 2 Moreover, because the circuit court’s
1
I agree that a knowledgeable person might infer this principle from the
circuit court’s instructions, and I assume that this explains the majority’s conclusion that
the circuit court gave “a complete and accurate instruction on the question of the
independent contractor defense[.]” However, most jurors are not employment lawyers,
much less appellate court justices with experience deciding employment law cases. Rule
49(b) imposes a higher burden of clarity on the circuit court—instructions and explanations
that “enable the jury both to make answers to the interrogatories and . . . render a general
verdict[.]” W. Va. R. Civ. P. 49(b) (emphasis added).
2
Kerr was construing
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instructions arguably equipped the jury to determine whether Mr. Wilfong was an
independent contractor at the time of the accident, all that remained was to provide the jury
with a means of expressing its conclusion and to provide guidance for how this conclusion
would affect the verdict. If the court had coupled its instructions with a proper
interrogatory—like the interrogatory proposed by Roof Service 3—the circuit court would
have “allow[ed] the jury to render a verdict on the issues framed consistent with the law,
Section 5 of chapter 131 of the Code[, which] provide[d] that,
“upon the trial of any issue or issues to a jury, whether under
this section or not, the court may, on motion of any party, direct
the jury, in addition to rendering a general verdict, to render
separate verdicts upon any one or more of the issues, or to find
in writing upon particular questions of fact, to be stated in
writing. . . . Where any such separate verdict or special finding
shall be inconsistent with the general verdict, the former shall
control the latter, and the court shall give judgment
accordingly.”
Id. 31 W. Va. 659 , 8 S.E. at 506 (emphasis added). Kerr’s reasoning, which emphasized
the language in italics, id. 31 W. Va. 659, 8 S.E. at 507, remains valid in light of Rule
49(b)’s command that
[w]hen the answers are consistent with each other but one or
more is inconsistent with the general verdict, the court may
direct the entry of judgment in accordance with the answers,
notwithstanding the general verdict or may return the jury for
further consideration of its answers and verdict or may order a
new trial.
3
Roof Service proposed the following threshold interrogatory: “Do you find
by a preponderance of the evidence that Bruce Wilfong was working as an independent
contractor, and not as an employee of . . . Roof Service of Bridgeport, Inc.[,] at the time of
the June 9, 2015, accident that is the subject of this case?” After this interrogatory, Roof
Service proposed to instruct the jury, “If your answer to Question 1 is YES, please do not
answer any further questions. Please have the Foreperson sign and date this Verdict Form
and advise the Bailiff that you have reached a Verdict. If your answer to Question 1 is NO,
please proceed to Question 2.” (Emphasis removed.)
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with the evidence, and with the jury’s own convictions.” Adkins, 195 W.Va. at 572, 466
S.E.2d at 423.
In this case, however, Roof Service failed to object to the verdict form before
it was submitted to the jury and before the jury was discharged. Generally, a party’s failure
to raise a timely objection forecloses appellate review. Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1329 (11th Cir. 1999) (“A party who fails to raise an objection to a verdict
form interrogatory or jury instruction prior to jury deliberations waives its right to raise the
issue on appeal. . . . We have recognized only two exceptions to this rule: first, where a
party has made its position clear to the court previously and further objection would be
futile; and second, where it is necessary to correct a fundamental error or prevent a
miscarriage of justice. This second exception is known as plain error review.” (citations
and quotation marks omitted)); Play Time, Inc. v. LDDS Metromedia Comm., Inc., 123
F.3d 23, 29–30 (1st Cir. 1997) (“WorldCom interposed no record objection to the special
verdict form . . . . Consequently, appellate review is limited to determining whether a
miscarriage of justice would occur were the asserted error not corrected.”); Johnson v.
Unified Gov’t of Wyandotte Cty./Kansas City, Kansas, 180 F. Supp. 2d 1192, 1202 (D.
Kan. 2001), aff’d, 371 F.3d 723 (10th Cir. 2004) (“[G]iven that plaintiffs did not object to
the verdict form for the reasons they now assert, the court reviews the verdict form only
for ‘plain error.’ ”); Morgan v. Oklahoma Nat. Gas Co., 1977 OK 49, 561 P.2d 1363, 1365
(“[P]laintiff objected to neither the instructions nor the form of the verdict. It is well
recognized that where a party fails to object to the form of the verdict at the time the verdict
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is returned and before the jury is discharged, such failure constitutes a waiver of objections.
. . . An error in verdict form does not require reversal unless a miscarriage of justice has
probably resulted therefrom.”); 89 C.J.S. Trial § 1094 (“Generally, a failure to object to a
verdict form in time waives the objection, at least where the use of the form does not
involve fundamental or constitutional error.” (footnote omitted)); see also W. Va. R. Civ.
P. 51 [1998] (“No party may assign as error the giving or the refusal to give an instruction
unless the party objects thereto before the arguments to the jury are begun . . . ; but the
court or any appellate court, may, in the interest of justice, notice plain error in the giving
or refusal to give an instruction, whether or not it has been made the subject of objection.”).
However, as the foregoing authorities indicate, this Court has authority to
review the verdict form for plain error. 4 “Plain error is error that is plain, that affects
4
We have held that “[w]hen a right is waived, it is not reviewable even for
plain error. By contrast, the simple failure to assert a right by not objecting—forfeiture—
is distinct from an intentional relinquishment—waiver. Only a forfeiture is reviewable
under plain error.” State v. Crabtree, 198 W. Va. 620, 631, 482 S.E.2d 605, 616
(1996). Whether a failure to object is a “waiver” (in the Crabtree sense) or a “forfeiture”
depends on the facts, and in most cases, what Farley or Morgan refer to as a “waiver” is
really a “forfeiture” for purposes of Crabtree. In this case, when the circuit court asked,
“Anybody—have you both looked over the verdict form as amended? Is everybody in
agreement with the verdict form?” Roof Service’s attorney replied, “Yes.” However,
counsel’s response is less enlightening than it might seem, because the circuit court posed
two questions: (a) whether counsel had reviewed the form and (b) whether counsel agreed
with it. There is no reason to assume that counsel was answering one question or the other.
Moreover, Roof Service objected to the verdict form in a motion for judgment as a matter
of law or, in the alternative, for a new trial, pursuant to W. Va. R. Civ. P. 59(a) and (e)
[1998], after the circuit court entered judgment in this matter. Under the circumstances, I
am inclined to view Roof Service’s response to the circuit court’s questions as a “simple
failure to assert a right by not objecting—forfeiture—[as] distinct from an intentional
relinquishment—waiver.” Crabtree at 631, 482 S.E.2d at 616.
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substantial rights, and that seriously affects the fairness, integrity, or public reputation of
the judicial proceedings.” State v. Jeremy S., ___ W. Va. ___, ___, 847 S.E.2d 125, 132
(2020).
In my view, the circuit court’s failure to issue an interrogatory regarding Mr.
Wilfong’s alleged independent contractor status was plain error. This is a case where Mr.
Trent sought to hold a corporation, Roof Service, responsible for the alleged negligence of
one of its employees. Uncontroverted evidence showed that Mr. Wilfong was driving his
personal vehicle at the time of the accident, and Roof Service presented substantial
evidence to suggest that Mr. Wilfong was acting for himself as an independent contractor.
Under these circumstances, it was plainly not enough for the circuit court to instruct the
jury about the differences between independent contractors and employees. The jury
needed a concrete and straightforward means of rendering a verdict on what, for Roof
Service, was perhaps the dispositive issue in the case. Despite this need, the circuit court
posed just one question to the jury—a question that only addressed Mr. Wilfong’s alleged
status as an employee. For the reasons stated above, and because I believe that the circuit
court’s verdict form effectively deprived Roof Service of its ability to fully pursue its
position that Mr. Wilfong was an independent contractor, I dissent. I have been authorized
to state that Justice Jenkins joins me in dissenting from the majority opinion.
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