Opinion
Civil Docket No.: CL17-3137
04-12-2018
RE: LaTrica Gray v. Debra Rolland
Brittany Gold, Esq.
GEICO Staff Counsel
192 Ballard Court, Suite 310
Virginia Beach, VA 23462 Christopher Jacobs, Esq.
Kalfux & Nachman, P.C.
P.O. Box 12889
Norfolk, VA 23451 Dear Counsel:
The matter comes before the Court on Plaintiff's motion to set aside the verdict and grant a mistrial. The Court took the matter under advisement and did not enter judgment on the jury's verdict pending briefing by counsel on the instant motion. For the reasons stated herein, the motion is denied.
Factual Background
The parties came to this Court for a jury trial to determine damages to be adjudged against Defendant, as Defendant stipulated her fault in the car accident that gave rise to this litigation. At the conclusion of the trial on March 27, 2018, the jury stated that it had reached a verdict; and the foreperson handed a verdict form to the Court indicating that their award was in the amount of $13,371.43. That sum equaled the exact amount of Plaintiff's special damages. The Court advised the jury that they were not permitted to return a verdict for the exact amount of the special damages, that they should review the jury instructions including the one outlining the elements of damages, and deliberate further. The jury did so and thereafter returned with a verdict of $15,000.00.
Analysis
Plaintiff asserts that the Court was prohibited as a matter of law from rejecting the verdict for the exact amount of the special damages and sending the jury back for further deliberations. Plaintiff cites two Virginia Supreme Court decisions which establish that a verdict for a plaintiff's exact amount of medical and special damages is inadequate as a matter of law. See Toombs v. Hayes, 256 Va. 193 (1998) and Bowers v. Sprouse, 254 Va. 428 (1997). In both of those cases, the trial court accepted the jury's verdict for the exact amount of the specials and entered judgment on those verdicts. Neither involved the authority of the Court to instruct the jury that the verdict was insufficient and to direct them to resume deliberations.
Plaintiff argues that the Court had only two options when presented initially with the verdict form noting the $13,371.43 award, which are set out in Virginia Code §8.01-383.1(B):
In any action at law when the court finds as a matter of law that the damages awarded by the jury are inadequate, the trial court may (i) award a new trial or (ii) require the defendant to pay an amount in excess of the recovery of the plaintiff found in the verdict. If either the plaintiff or the defendant declines to accept such additional award, the trial court shall award a new trial.
The statute says that the Court "may" take either of the listed options; it does not require such action or exclude other courses of action. Counsel has not cited, and the Court has not located, authority wherein the above Code section was interpreted to prohibit a court from advising the jury that they may not return a verdict for the exact amount of the special damages. The statute applies and provides available remedies in cases where courts are persuaded of the inadequacy of the verdict after the jury has been discharged; but in the case at bar, the jury had not been discharged. The Court had the opportunity to allow the jury to fix the problem. "It is well-settled that a jury may amend its verdict at any time before it is discharged." Virginia Auto Max, Inc. v. Fredericksburg Truck, 45 Va. Cir. 403, 405 (Spotsylvania 1998).
The Virginia Supreme Court clarified the practice of sending juries back to correct irregular verdicts in Porterfield v. Commonwealth, 91 Va. 801 (1895):
The proper practice in such cases is for the trial court to see that the verdicts of the juries are put in proper form before they are discharged, but if any change in the substance of the verdict is to be made, the jury should be sent back to their room, where they can, untrammeled by the presence or influence of others, find such verdict as they deem proper.Id. at 807.
The Court notes that the Bowers decision, where the Virginia Supreme Court first announced a per se rule that personal injury verdicts for the exact amount of the specials were legally insufficient, includes a dissent by Justice Lacy arguing against the adoption of such a rule. Of note to the instant controversy are these statements in that dissent:
Assuming juries will be instructed that they may not return a verdict in the exact amount of the plaintiff's special damages, the [per se] rule would eliminate putting the parties to the time and expense of litigating whether the verdict was inadequate and calling a new jury to relitigate the damage issue in circumstances where the trial court determined post trial that the verdict was inadequate.
***
Even if juries are instructed that they may not return a verdict in the exact amount of the special damages, as I believe they must be, juries will continue to return verdicts in amounts close to the amount of the special damages.Bowers, 254 Va. at 435 (emphasis added). Justice Lacy's argument seems to indicate that the Justices anticipated from the beginning of this rule that juries would be instructed not to return a verdict in the exact amount of the specials.
Plaintiff's legal position, that a jury verdict may not be amended once signed by the foreperson and handed over to the judge, is not supported by any of the authority cited in her post-trial memorandum. The Court's instruction that they should resume deliberations gave them the opportunity to correct what would have been reversible error. For these reasons, the Court denies Plaintiff's motion to set aside the verdict and grant a mistrial.
The Court's Order entering judgment on the jury verdict is enclosed.
Sincerely,
/s/
Mary Jane Hall
Judge MJH/MAN/nm
Enc.