From the desk of Jeff D. Eberhard: Insurers should be aware that the Oregon Supreme Court recently held that the same nine jurors do not have to agree on the amount of economic and noneconomic damages so long as the verdict does not create a logical inconsistency.
Claims Pointer: When defending a case in which a verdict is entered, defense counsel should take care to ensure that the answers to each question on the verdict form make logical sense. The same nine jurors are only required to agree on all the issues necessary to support a verdict in a case. In this case, all twelve jurors agreed on liability, but a different nine jurors agreed on the amount of economic damages than the nine that agreed on non-economic damages.
Kennedy v. Wheeler, in the Oregon Supreme Court, 356 Or. 518 (2014).
Defendant, Kelsey Wheeler (“Wheeler”), drove through a stop-sign and collided with a car in which Plaintiff, Amber Kennedy (“Kennedy”), was a passenger. Kennedy filed a negligence action which was tried to a 12 person jury. The case was tried solely on damages. The trial court instructed jurors, if they found Kennedy was entitled to economic damages, then noneconomic damages were also to be awarded. Jurors were further instructed that at least the same nine jurors must agree on each answer to the questions on the verdict form, unless jurors were instructed otherwise as to the particular question.
The completed verdict form read as follows:
For questions 1 and 2, at least the same nine jurors must agree on each of the questions that you answer.
“We, the jury, find:
“1. Was defendant Wheeler’s negligence a cause of damage to plaintiff?
“ANSWER: 12 (Yes or No)
“If your answer to question 1 is ‘yes,’ proceed to question 2.
“If your answer to question 1 is ‘no,’ proceed to question 3.
“2. What are plaintiff’s damages resulting from defendant Wheeler’s negligence?
“ANSWER: Economic Damages $65,386.48 Noneconomic Damages $300,000.”
All 12 jurors had agreed defendant’s negligence was the cause of damage to plaintiff, and at least nine jurors agreed on each, economic and noneconomic damages. Wheeler asked for the jurors to be polled. The trial court asked whether the jurors agreed $65,386.48 was their verdict, and jurors 1 and 3 said it was not. When the court did the same for noneconomic damages, jurors 2, 3 and 12 said they had not agreed on that amount. In essence, the same nine jurors who agreed to the amount of economic damages, were not the same nine jurors who agreed on the amount of noneconomic damages. Wheeler’s counsel raised the issue with the court before the jury was dismissed that only the same eight jurors, agreed on the amounts of economic and noneconomic damages. However, the trial court indicated the same nine jurors who agreed on the amount of economic damages did not have to be the same nine jurors who agreed on the amount of noneconomic damages.
The Oregon Supreme Court addressed whether the same nine jurors must agree on both economic and noneconomic damages under Article VII of the Oregon Constitution and ORCP 59 G (2). The court first noted ORCP 59 G (2) did not specify whether the same nine jurors must agree on each of the jury’s findings or whether the same nine jurors must vote in favor of all or some subset of those findings.
The court analyzed prior case law and held that the same number of legally required jurors must agree on the issues necessary to support a judgment to comport with Article VII. The court held ORCP 59 required that when a jury of 12 renders a special verdict and makes written findings in response to questions posed by the court (1) at least nine jurors must agree on the answer that forms the basis for the trial court’s judgment and (2) the votes of the jurors on those questions must be consistent. The court further explained, jurors’ answer to questions necessary to a judgment may not demonstrate a logical inconsistency. Lastly, ORCP 59 G (2) imposed no additional concurrence requirements. In this case, the same nine jurors who awarded economic damages also awarded noneconomic damages, but did not agree on the amount of noneconomic damages. The court pointed out that the verdict here was logically consistent since the amount of economic damages was irrelevant to the amount of noneconomic damages.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.