00-795 Opinion
No. 00-795
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 60
REFF-CONLIN'S INC., CONLIN'S OF GRAND FORKS, INC.,
and CONLIN'S CONTRACT SERVICE, INC.,
Plaintiff/Respondent/Cross-Appellant,
v.
FIREMAN'S FUND INSURANCE COMPANY and
WESTERN STATES INSURANCE COMPANY, INC.,
Defendants/Appellant/Cross-Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Susan P. Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
L. B. Cozzens, Cozzens, Warren & Harris, P.L.L.P., Billings, Montana
For Respondent:
James L. Jones, Dorsey & Whitney, LLP, Billings, Montana
Submitted on Briefs: January 17, 2002
Decided: March 28, 2002
Filed:
__________________________________________
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Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Plaintiff, Reff-Conlin's Inc., brought this action in the District Court for the Thirteenth Judicial
District in Yellowstone County to recover compensation for losses caused when the Red River flooded
Conlin's Grand Forks, North Dakota, furniture store. Named as defendants were its insuror, Fireman's
Fund Insurance Company, and its insurance agent, Western States Insurance Company. Conlin's settled
with Fireman's Fund but proceeded to trial against Western States. The jury found that Western States
negligently procured flood insurance for the Grand Forks store and negligently misrepresented its efforts
to obtain the insurance and is 100% liable for Conlin's damages. Following a post-trial hearing to
determine damages, the District Court entered judgment in favor of Conlin's. Western States appeals
from the judgment of the District Court and Conlin's cross-appeals. We reverse the District Court and
remand for a new trial.
¶2 Although numerous issues are raised on appeal and cross-appeal, our resolution of the following
issue requires a new trial and therefore we decline to address additional issues:
¶3 Did the District Court err when it denied Western's challenge for cause of potential juror Derrig?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On April 19, 1997, the Red River flooded Reff-Conlin's Inc.'s furniture store in Grand Forks, North
Dakota. At the time of the flood, Conlin's was insured by the Defendant Fireman's Fund, Inc., through
its agent, Defendant Western States, Inc., an independent insurance agency with fourteen offices across
Montana.
¶5 Conlin's filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone
County on August 19, 1997. Conlin's alleged that it asked Western to add flood insurance to the Grand
Forks store's existing policy in March 1997. However, Fireman's failed to inform Western that no flood
insurance would be offered until April 18, 1997, the day before the dikes protecting Grand Forks broke.
¶6 Conlin's claimed: (1) that Fireman's breached its contract to insure the store; (2) that Fireman's and
Western committed constructive fraud and negligent misrepresentation in handling Conlin's flood
insurance request; (3) that Fireman's negligently handled Conlin's request for flood insurance; (4) that
Fireman's and Western breached the implied covenant of good faith and fair dealing; (5) that Fireman's
conduct in handling Conlin's insurance claim violated the Unfair Claims Settlement Practices Act; (6)
that Western negligently handled Conlin's request for flood insurance; and (7) that the conduct of the
Defendants amounted to actual fraud and malice which entitled Conlin's to punitive damages.
¶7 In an Amended Complaint filed September 8, 1998, Conlin's further alleged that Fireman's made
representations about coverage upon which Conlin's relied and that Fireman's should therefore be
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estopped from relying on a policy exclusion for damage caused by flood. Finally, Conlin's contended
that Western breached its contract with Conlin's.
¶8 The essence of Conlin's argument at the District Court was that an existing Fireman's policy
covered $329,000 of its $665,000 loss. Moreover, Conlin's alleged that Fireman's was negligent for
failing to inform either Western or Conlin's of its decision not to offer flood insurance until it was too
late for Conlin's to look elsewhere. Conlin's alleged that Western was negligent for failing to procure
flood insurance and negligently misrepresented that flood insurance would be acquired for the Grand
Forks store.
¶9 Conlin's and Fireman's reached a confidential settlement agreement, and the District Court filed a
May 10, 1999, order which dismissed Fireman's with prejudice as a defendant. A general release of all
Conlin's claims against Fireman's was subsequently filed on September 3, 1999. However, Conlin's
proceeded to trial against Western, which made a claim for contribution against Fireman's.
¶10 On January 21, 1999, Western filed a motion for summary judgment. Western argued that
Conlin's had never specifically requested that Western procure flood insurance for the Grand Forks
store. Western further argued that it had no duty to procure flood insurance pursuant to its contract with
Conlin's.
¶11 The District Court granted Western's summary judgment motion on the breach of contract and
constructive fraud claims, concluding that Western had no contractual obligation to provide flood
insurance. However, the District Court concluded that issues of material fact precluded summary
judgment on the breach of the implied covenant of good faith and fair dealing, negligent
misrepresentation, and negligence claims. Conlin's proceeded to trial against Western on these
remaining claims.
¶12 During voir dire prospective juror Martin Derrig disclosed that he was president of US Bank,
which, at the time of trial, was represented by Conlin's trial counsel; that he had in the past worked with
that firm as bank president; and that U.S. Bank was one of Conlin's creditors.
¶13 Western challenged Derrig for cause twice during voir dire. The District Court denied both
challenges. Western then used one of its peremptory challenges to remove Derrig from the jury panel.
Western used all of its peremptory challenges during jury selection.
¶14 Following a seven day trial, the jury found that Western was negligent in the procurement of flood
insurance for the Grand Forks store and that Western negligently misrepresented its efforts to obtain the
insurance. The jury attributed 100% of the liability to Western.
¶15 After a post-trial hearing on damages, the District Court offset $146,849, added interest, and
entered judgment in favor of Conlin's for $615,030. Western now appeals from that judgment and
Conlin's cross-appeals. We reverse and remand for a new trial.
STANDARD OF REVIEW
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¶16 We will review a district court's refusal to grant a challenge for cause for an abuse of discretion.
DISCUSSION
¶17 Did the District Court err when it denied Western's challenge for cause of potential juror Derrig?
Western contends that the District Court erroneously denied its challenge for cause to prospective
juror Derrig. Because Western was forced to use a peremptory challenge to prevent Derrig from
serving, and because Western used all of its peremptory challenges, Western now maintains that it was
correspondingly denied an equal number of peremptory challenges and is therefore entitled to a new
trial.
¶18 At trial, Western asserted two bases for challenging Derrig for cause. Western challenged Derrig
based on the debtor-creditor relationship between Conlin's and US Bank and Western challenged Derrig
due to the potential for bias arising from his attorney-client relationship with Conlin's trial attorneys.
Each of these challenges for cause was denied and Western was forced to use a peremptory challenge to
exclude Derrig from the jury.
1. Debtor - Creditor Relationship
¶19 Derrig revealed during voir dire that US Bank provided financing for Conlin's. The District Court
denied Western's challenge for cause based on US Bank's creditor relationship with Conlin's. Western
now maintains that as president of US Bank, Derrig had a professional interest in Conlin's recovery of it
flood losses and, therefore, its challenge should have been granted. Conlin's contends that Derrig is
merely an employee of a creditor and that the District Court considered the relevant facts and properly
concluded that Derrig could be impartial.
¶20 Section 25-7-223(3), MCA, provides that "[c]hallenges for cause may be taken" on the grounds
that a debtor-creditor relationship exists between the juror and either party. We conclude that there is no
substantive difference between the Chief Executive Officer of a creditor who is responsible for the
creditor's success and the creditor itself when it comes to impartiality and jury duty. To hold otherwise
would exalt form over substance. Therefore, we conclude that the District Court abused its discretion
when it denied Western's challenge to Derrig based on the debtor-creditor relationship of Conlin's and
US Bank.
2. Attorney-Client Relationship
¶21 Derrig also stated during voir dire that US Bank was represented by the attorneys for Conlin's and
that he had worked with attorneys from that firm. Derrig revealed that as president, he was one of two
people who made decisions with regard to which firm the bank would use. When questioned, however,
Derrig said that he could be fair and impartial despite his professional relationship with Conlin's trial
attorneys.
¶22 Western contends that Derrig should have been removed for cause because of US Bank's
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relationship with Conlin's trial counsel. Conlin's counters that there was no attorney-client relationship
between its attorneys and Derrig. Rather, any professional relationship was between the attorneys and
US Bank. Western replies that any distinction between personal and corporate representation is eroded
where the potential juror is an officer, director, or shareholder of the corporation and notes that as
president of US Bank, Derrig had a professional interest in his relationship with opposing counsel.
¶23 Section 25-7-223, MCA, lists the grounds for challenge to jurors for cause in civil actions.
Although the statute does not specifically address a current attorney-client relationship, Western
suggests that such a relationship might be covered by subparagraph (5), which permits challenges for
cause when the prospective juror has an interest in "the event of the action," or by subparagraph (7),
which permits challenges on the basis of "the existence of a state of mind ... evincing enmity against or
bias in favor of either party." See §§ 25-7-223 (5), (7), MCA.
¶24 We have not previously addressed the issue of whether a district court abuses its discretion by
refusing a challenge for cause based on a current relationship between an attorney representing one of
the parties and a prospective juror. We have, however, had occasion to discuss the propriety of denying
a challenge for cause based on an attorney's past relationship with a prospective juror. In Williams v.
Rigler (1988), 234 Mont. 161, 761 P.2d 833, two jurors considered defense counsel to be their attorney,
but neither had any business pending with the attorney at the time of trial. When asked by the judge,
one of the jurors answered that her past relationship would not affect her ability to act as a juror. We
upheld the District Court's denial of plaintiff's challenge for cause, stating: "Because the District Court
confirmed that no present business was pending between either of the jurors and defense counsel, we
find no abuse of discretion by the District Court in refusing Williams' challenges for cause." Williams,
234 Mont. at 164, 761 P.2d at 835.
¶25 Unlike the juror in Williams, Derrig had an ongoing relationship with Conlin's attorneys.
Moreover, Derrig was one of the people at US Bank responsible for hiring Conlin's attorneys, which
strongly suggests that he had a favorable opinion of their work. An ongoing attorney-client relationship
between a prospective juror and trial counsel presents the strong possibility of bias in favor of the party
represented by those attorneys.
¶26 We conclude that the District Court should have granted Western's challenge for cause pursuant to
§ 25-7-223(7), MCA. Accordingly, we hold that the District Court erred when it denied Western's
challenge for cause on the basis of an attorney-client relationship.
¶27 Prior decisions of this Court have established the principle that when a district court erroneously
denies a challenge for cause, we presume that one party was prejudiced and is therefore entitled to a new
trial. We explained the rationale for presuming prejudice as a matter of law in State v. Williams (1993),
262 Mont. 530, 866 P.2d 1099, rev'd in part on other grounds, State v. Good, 2002 MT 59, __ Mont. __,
__ P.3d __, a criminal case where we looked at the advantage created for one party when the other party
had to use a peremptory challenge to remove even one juror who should have been removed by the
District Court for cause. We held that:
When jurors who should have been removed for cause are not removed and must,
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therefore, be removed by peremptory challenge, the party whose challenge for cause was
wrongfully denied effectively loses one of the peremptory challenges provided for by
law. In other words, the effect of the district court's abuse of discretion in this case was to
reduce defendant's number of peremptory challenges to five, rather than six.
Williams, 262 Mont. at 537, 866 P.2d at 1103.
¶28 When one party receives more peremptory challenges than an opponent, that party has a tactical
advantage that is unmistakable, but nearly impossible to prove. See King v. Special Resource
Management, Inc., (1993), 256 Mont. 367, 371-74, 846 P.2d 1040-42. In these circumstances "prejudice
is presumed as a matter of law." King, 256 Mont. at 374, 846 P.2d at 1042.
¶29 In King, the plaintiff sued the Montana Power Company and two subsidiaries for wrongful
discharge from employment. The defendants were each given eight peremptory challenges to the jury
compared to King's four. This Court concluded that defendants had not demonstrated sufficient hostility
to justify additional peremptory challenges. More importantly, however, the Court recognized the
beneficial effect of extra peremptory challenges and explained why, when they are received, prejudice
must be presumed whether or not it can be demonstrated. We noted that up until that time Leary v.
Kelly Pipe Co. (1976), 169 Mont. 511, 549 P.2d 813, required that a party claiming prejudice based on
extra peremptory challenges was required to prove that he or she had in fact been prejudiced. We then
outlined the difficulty of meeting this requirement:
The Leary test requires adversely affected parties to show that they were actually
prejudiced by a grant of additional peremptory challenges to the opposing party. This
places an almost impossible burden on the objecting party. Moreover, when we focus on
review on the actual conduct of a juror, we ignore the correctness of the trial court's
decision and that decision becomes virtually unreviewable. Hunsaker, 588 P.2d at 499.
As noted by Justice Shea in that opinion, "our attention is focused on the conduct of the
jury, which in most cases we are in no position to determine."
It is the policy of the law to look with disfavor on any attempt to invade the jury's
internal decision making processes in order to impeach verdicts, except in rare
circumstances. In Kentucky Farm Bureau, the court stated:
It may be that peremptory challenges should be abolished in civil cases
and only challenges for cause allowed. We are informed that this is the
present English practice. As long as they are retained as part of the trial
process, however, we believe that their proper allocation between litigants is
a substantial right which so pervades the process that its erroneous
application requires reversal as a matter of law if the issue is properly
preserved by the adversely affected litigant. (citations omitted).
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...
If we require a showing of prejudice as in Leary, we cannot evaluate the effect of an
improper grant of peremptory challenges without invading the internal processes of a
jury. We also should not disregard the advantages bestowed upon one side by having
additional peremptory challenges granted to them. We previously modified Leary to the
extent that prejudice need not be demonstrated when a trial court follows the guidelines
set forth in Hunsaker. See Williams, 761 P.l2d 833. We now expressly overrule Leary v.
Kelly Pipe Co. to the extent it requires a showing of prejudice to reverse a jury verdict for
an incorrect grant of peremptory challenges to one side.
King, 256 Mont. at 373-74, 846 P.2d at 1042.
¶30 We have recently followed the rule announced in King and reinforced its rationale in Bueling v.
Swift, 1998 MT 112, 288 Mont. 472, 958 P.2d 694, and in Armstrong v. Gondeiro, 2000 MT 326, 303
Mont. 37, 15 P.3d 386. Therefore, Williams stands for the principle that when a district court
erroneously denies a challenge for cause, it is the substantive equivalent of granting one side more
peremptory challenges than the other which, as we held in King, is prejudicial as a matter of law.
Because an erroneous ruling on a challenge for cause is presumed prejudicial as a matter of law, we
reverse the District Court and remand for a new trial.
/S/ TERRY N.
TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
Justice Patricia O. Cotter dissents.
¶31 I agree with the majority’s conclusions that the District Court erred when it denied Western’s
challenge for cause on the basis of the attorney-client relationship. Moreover, I agree with the
majority’s conclusion that when one party receives more peremptory challenges than an opponent,
prejudice is presumed. However, I dissent from the majority’s conclusion that once prejudice is
presumed, the inquiry ends and the jury’s verdict must be reversed. In my judgment, the presumption of
prejudice was rebutted here, and therefore the verdict should have been affirmed.
¶32 The majority cites the case of State v. Williams (1993), 262 Mont. 530, 866 P.2d 1099, for the
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proposition that, once a district court erroneously denies a challenge for cause, the error is deemed
prejudicial as a matter of law, the inquiry ends, and the verdict must be reversed. Williams, ¶ 27.
Recently, the application of State v. Williams to the erroneous denial of a challenge for cause in a
criminal case was reconsidered by this Court. In State v. Good, 2002 MT 59, ___ Mont. ___, ____ P.3d
___, this Court, relying upon State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735, concluded
that where a district court abuses its discretion in denying a challenge for cause, the defendant must use
one of his peremptory challenges to remove the disputed juror, and the defendant thereby exhausts all of
his peremptory challenges, the district court’s denial of the subject challenge for cause will be deemed
structural error and thus automatically reversible. To the extent that State v. Williams had previously
required a defendant both to establish the foregoing elements, and establish that the error contributed to
the defendant’s conviction, we overruled Williams.
¶33 I concurred in the majority’s conclusion in State v. Good that a district court’s abuse of discretion
in failing to grant a challenge for cause during voir dire in a criminal case should be considered a
structural error that is conclusively prejudicial. As I noted in my concurring opinion in State v. Good:
In light of the necessity for a unanimous verdict in a criminal case, one prospective
juror lost to the defendant due to an erroneous denial of a challenge for cause could
clearly mean the difference between conviction and either acquittal or a hung jury.
However, I wrote separately to state that I would limit the Court’s holding in this regard to criminal
cases only, and would apply a different test in civil cases. I write here to suggest what that test would
be, and to dissent from the Court’s conclusion that a district court’s abuse of discretion in failing to grant
a challenge for cause in a civil case is conclusively prejudicial.
¶34 In its argument for the application of the “conclusively prejudicial” test in civil cases,
the majority relies on King v. Special Resource Management (1993), 256 Mont. 367, 846 P.2d 1038,
where we held that, when one party receives more peremptory challenges than an opponent, prejudice is
presumed as a matter of law. In King, the circumstances were substantially different than those
presented here. The plaintiffs complained in King that the district court erred by granting eight
peremptory challenges to the defendants Montana Power Company and its two non-hostile subsidiary
corporations, while granting only four peremptory challenges to the plaintiffs. Thus, the defendants had
twice the peremptory challenges available to them than the plaintiffs had. We concluded in King that a
showing of prejudice by the party disadvantaged by the disparity in peremptory challenges would no
longer be required to support reversal of a jury verdict. While we said in King that prejudice under such
circumstances is presumed as a matter of law, we never said the presumption of prejudice was
conclusive.
¶35 Five years after King was decided, this Court gratuitously expanded the King holding when we
said in dicta in State v. DeVore, 1998 MT 340, 292 Mont. 325, 972 P.2d 816, a criminal case, that "the
rule in a civil context is that when one party has been erroneously denied an equal number of
peremptory challenges, we presume prejudice as a matter of law and automatically grant the offended
party a new trial." DeVore, ¶36. Thus, in DeVore, we announced for the first and only time (until today)
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that in the civil setting, we will both presume prejudice and automatically grant reversal where a
challenge for cause is erroneously denied.
¶36 I submit that, while error should be presumed when a challenge for cause in a civil case is
erroneously denied, that presumption should not be conclusive. Rather, I would allow the presumption
to be rebutted. I am not advocating a return to the rule adopted in Leary v. Kelly Pipe Company (1976),
169 Mont. 511, 549 P.2d 813, where we held that the party urging reversal of a jury verdict for an
incorrect grant of peremptory challenges must demonstrate or show prejudice in order to obtain the
result. We overruled Leary, in King v. Special Resource Management, 256 Mont. at 374, 846 P.2d at
1042, and properly so. Requiring a party urging reversal of a verdict to demonstrate prejudice flies in
the face of our holding in King that we will presume prejudice from a district court’s error in failing to
strike a juror for cause. Rather, once prejudice is presumed, the burden to overcome that presumption
should be placed on the party who received the benefit of the extra peremptory challenge. That party--
and not the appellant--should be required, once error is established and prejudice presumed, to
demonstrate that there is no reasonable possibility that the District Court’s error contributed to the
verdict. We had the test right in Leary. The problem is we imposed the burden on the wrong party.
¶37 The test I propose here, requiring the prevailing party to demonstrate that there is no reasonable
possibility the error contributed to the verdict, is not new to our jurisprudence. We recently announced
the adoption of a similar analytical framework in Van Kirk, ¶ 47, holding that when considering trial
errors, the State as prevailing party must demonstrate there is no reasonable possibility that erroneously
admitted evidence contributed to the defendant’s conviction. We have thus demonstrated our
willingness and ability to engage in this type of “reasonable possibility the error contributed to the
verdict” analysis in criminal cases. There is simply no reason we cannot engage in a similar analysis, if
necessary, in a civil case.
¶38 There is a fundamental reason for my belief that the test should be different in civil cases than in
criminal cases. The verdict in criminal cases must be unanimous. The one prospective juror lost to the
defendant because of the court’s erroneous denial of a challenge for cause could have been the one who
would vote against conviction, make a finding of guilt impossible. In the civil case, though, while the
loss of one prospective juror could be pivotal, it may not always be so. This is because unanimity is not
required of a civil jury. Thus, while one lost juror could make all the difference in the criminal case, it
may be immaterial and therefore not even potentially prejudicial in a civil case. This case illustrates the
point exactly.
¶39 Reff-Conlin argued that the differential of one peremptory challenge could not have made a
difference in the outcome of the verdict. In light of the fact that the verdict for the plaintiff here was
unanimous, which the majority fails to mention, Reff-Conlin is right. There is simply no reasonable
possibility that the erroneous denial of the challenge for cause at issue here could have contributed to the
verdict. The plaintiff needed the votes of only eight of twelve jurors in order to obtain a verdict in its
favor. However, it secured the votes of all twelve. In order for the defendant to have prevailed in this
case, it would have needed eight jurors to vote for a defense verdict. There is simply no reasonable
possibility that with the addition of one peremptory challenge, Western would have swayed eight of the
unanimous twelve jurors who voted in favor of the plaintiff to vote for the contrary result.
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¶40 It is in cases like this that the presumption of prejudice can be irrefutably overcome. Obviously, in
cases in which the verdict is not unanimous, the prevailing party that received the benefit of the extra
peremptory challenge would have a more difficult burden to meet. If he or she could not meet the
burden of demonstrating that there is no reasonable possibility that the error contributed to the verdict,
then the presumption of prejudice would be unrebutted and reversal would be required.
¶41 In sum, I would hold that in those civil cases where the losing party could demonstrate that the
district court erroneously denied one or more of its challenges for cause, prejudice to that party would be
presumed. The prevailing party would then have the opportunity to rebut the presumption by
establishing that there is no reasonable possibility that the error contributed to the verdict. If he or she
met that burden, then the error would not justify or compel reversal. If the prevailing party could not
meet the burden, the presumption would be deemed unrebutted and reversal would be required.
¶42 Because there is no reasonable possibility that the error in denying Firemen’s Fund’s challenge for
cause contributed to the verdict in this case, I would affirm. In my judgment, it is senseless and
manifestly unfair to overturn a jury verdict when an error made during jury selection could not have
possibly affected the outcome of the trial. I therefore dissent.
/S/ PATRICIA COTTER
Justice Jim Rice dissenting
.
¶43 I concur with Justice Cotter’s dissent inasmuch as it addresses the proper standard to be applied to
a district court’s abuse of discretion in denying a challenge for cause in a civil jury case, and therefore
dissent from the Court’s reversal of the judgment entered herein.
¶44 In regard to a district court’s abuse of discretion in denying a challenge for cause in a criminal jury
case, I would apply the standard set forth in my dissent in State v. Good, 2002 MT 59, ___ Mont. ___,
___ P.3d ___.
/S/ JIM RICE
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