Monte D. GROW, Appellant, Cross-Appellee, v. Carolyn F. RUGGLES, Appellee, Cross-Appellant.
Nos. S-4994, 5035
Supreme Court of Alaska
Oct. 15, 1993
Noel H. Kopperud, Kopperud & Hefferan, Anchorage, for appellee.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
BURKE, Justice.
This case arises out of an automobile accident between Monte Grow and Carolyn Ruggles. The two issues presented for review are whether the superior court erred in denying Ruggles’ motion for a new trial and whether the superior court abused its discretion in awarding Ruggles attorney‘s fees. We affirm the superior court‘s denial of Ruggles’ motion for a new trial but reverse the attorney‘s fees award.
In November 1987, Monte Grow drove his vehicle into the rear end of Carolyn Ruggles’ vehicle. Both Grow and Ruggles were insured by Allstate Insurance Company. Allstate initially paid Ruggles’ medical expenses out of Grow‘s liability policy. At some point, Ruggles’ lawyer requested that the payments be made out of Ruggles’ medical payment policy, as it appeared that her claim might exceed Grow‘s $100,000 liability policy limit. This change was accomplished, and Allstate thereafter claimed a lien and subrogation rights against Grow‘s liability policy.
Ruggles moved for and was granted summary judgment on the issue of Grow‘s negligence. The case proceeded to trial on the damages issue. At trial Grow аrgued that most of Ruggles’ medical expenses were the result of a pre-existing condition. He argued that only $600 of Ruggles’ medical expenses were actually caused by hеr accident with Grow. Using a special verdict form, the jury awarded Ruggles $31,777.88 in medical expenses, the exact amount Ruggles requested. The jury also awarded Ruggles $14,760 in lost, past and future income. However, it awarded her nothing for pain, suffering, and “loss of enjoyment of life.” Ruggles later filed a motion for a new trial, which was denied.
On appeal Ruggles argues that the superior court abused its discretion in not ordering a new trial because the jury‘s refusal to award pain and suffering damages was contrary to the evidence. She urges this court to remand the case for the limited purpose of fixing a reasonable damage award for pain and suffering, arguing that the parties should not be compelled tо retry issues that have already been resolved.
Casting Ruggles’ argument as an attack on the consistency of the verdict, Grow argues that Ruggles has waived her right to make such an argument because she failed to resubmit the issue to the jury before it was discharged. Indeed, we have long held that challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury. See City of Homer v. Land‘s End Marine, 459 P.2d 475, 480 (Alaska 1969) (“[T]he rule that objection on the grounds of inconsistency is waived by failure to move for resubmission promotes the fair and expeditious correction of error.“) (quoting Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968)); Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 n. 1 (Alaska 1989); State v. Haley, 687 P.2d 305, 321 (Alaska 1984); City of Fairbanks v. Smith, 525 P.2d 1095, 1097-98 (Alaska 1974) (resubmission rule designed to discourage jury shopping); Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 472 (Alaska 1971).
Ruggles claims the verdict was inadequate, not inconsistent. We disagree. The pain and suffering award was not merely inadequate—there was no award at all, de
Ruggles attempts to distinguish the cases which uphold the waiver rule by arguing that in the present case the jury was polled. While some of the language in our prior decisions may suggest that polling suffices to avoid the waiver rule, we wish to clarify that polling alone is not enough. See Haley, 687 P.2d at 321 (“[I]f counsel does not ask to poll the jury, or object to excusing thе jury or to the filing of the verdict, the right to challenge the consistency of the verdict is waived.“) (emphasis added). Polling only clarifies each juror‘s vote, it does not require the jury to re-examine controverted issues. To achieve the efficiency the waiver rule is designed to promote, and to avoid the jury shopping it is designed to prevent, counsel must do more than simply poll the jury; he/she must also ask the jury to re-examine its decision.1 We affirm the trial court‘s denial of Ruggles’ motion for a new trial.
Grow appeals the suрerior court‘s attorney‘s fees award of $9,100.35. Grow focuses on his settlement offer and Civil Rule 68 arguing that the trial court should have awarded fees to Grow instead of Ruggles. Grow‘s settlеment offer read in relevant part:
Defendant offers to allow entry of judgment in favor of Plaintiff in the amount of $66,526.70, including costs, interest and attorney‘s fees. Prior advances have been made to Carolyn F. Ruggles in the amount of $31,526.70, and a lien has been claimed for that amount. Ruggles would be responsible for paying any lien out of the $66,526.70. Accordingly, the net amоunt of this offer is $35,000.
Grow argues that since he offered Ruggles $35,000 above her medical expenses, and the jury only awarded her $14,760 above her medical expenses,
According to
Ruggles argues that Grow‘s offer was not in compliance with Rule 68 because it conditioned settlement on the liquidation and settlement of Allstate‘s subrogation claim. This is reading too much into the settlement offer. Contrary to Ruggles’ position, the offer does not attempt to “coerce collection of the subrogation lien on specific terms as a precondition to settlement of the liability case.” The offer simply notes that Ruggles is “responsible for” any liens which Allstate may have had for the advances it had already made. In so doing, the offer merely summarizes standard subrogatiоn theory; it does not, as Ruggles
AFFIRMED in part, REVERSED and REMANDED in part.
RABINOWITZ, Justice, concurring.
I am not persuaded that the special verdicts are inconsistent. Given the jury‘s return of special verdicts awаrding $0 damages for pain, suffering, and disfigurement, $0 damages for loss of enjoyment of life, and $31,777.88 in damages for past and future medical care, the two zero damage speciаl verdicts should be viewed as inadequate rather than inconsistent.1 Further, I think it manifestly unfair to invoke the doctrine of waiver in the circumstance where Ruggles’ counsel apparently did not realize the special verdicts in question could be characterized as inconsistent rather than inadequate. If the jury had chosen to return special verdiсts of $1 in damages for pain and suffering and disfigurement, and $1 in damages for loss of enjoyment of life, it could not reasonably be argued that the special verdicts were inconsistеnt.
Thus, I conclude that the issue before us is whether the superior court abused its discretion in denying Ruggles’ motion for a new trial, limited solely to damage claims for pain, suffering, disfigurement, аnd loss of enjoyment of life, based on the inadequacy of the special verdicts. In view of the credibility issues involved, and the problematic attempt to limit the scope of the new trial, I conclude that the superior court did not abuse its discretion in denying Ruggles’ motion for a new trial.