concurring in part, dissenting in part. The net result of the majority’s decision is to affirm post-trial relief in favor of BCBS in the amount of $400,000 and to deny PAM similar relief in the amount of $282,187.98, even though neither party objected to the verdicts while the jury was empaneled. I cannot rationalize this discrepancy in treatment under these facts.
The verdicts and awards for the respective recipients by year were:
1988/89 PAM Breach of Contract $ 201,099.50
1989/90 PAM Breach of Contract $ 94,271.24
1989/90 BCBS Breach of Contract $ 282,187.98
PAM Tort of Deceit $ 400,000.00 (no year specified)
. In sum, the jury awarded PAM a total recovery of $694,370.74 and BCBS $282,187.98. PAM’s net award, therefore, was $412,182.76.
Ten days after the verdicts, BCBS filed a motion stating that PAM could not recover in both contract and tort. Accordingly, BCBS called for PAM to elect between its tort award and its recovery in contract. Ten days following BCBS’s motion to elect, PAM filed a motion to modify BCBS’s award for the 1989/90 contract year. PAM’s argument was that this award could not be reconciled with awarding damages to PAM for breach of contract for the two years in controversy.
In its judgment, the trial court found as follows regarding the two post-trial motions:
3. That the verdicts for the Plaintiff on breach of contract and on the tort of deceit are inconsistent because in order for the Plaintiff to recover on breach of contract, the maximum liability provision of the contract had to be interpreted as contended by the Plaintiff, and if the maximum liability provision of the contract were interpreted as contended by the Plaintiff, then the Plaintiff was not fraudulently induced to enter into a contract different than what it understood the contract to be. Since the Plaintiff has affirmed the contract by receiving benefits under it and being awarded damages for the breach of it, the recovery of additional damages for the tort of deceit is inconsistent therewith; so the Plaintiff’s verdict for the tort of deceit should be set aside.
4. That the verdict in favor of the Defendant for breach of contract is consistent with the evidence because even the Plaintiff admitted it breached the contract, and the Defendant introduced evidence as to the amount of its damages for breach of contract, which amount was the amount awarded by the jury; so the verdict in favor of the Defendant for breach of contract should not be set aside. (Emphasis added.)
Hence, the court found that the verdicts in PAM’s favor for breach of contract and tort were “inconsistent,” though no motion to that effect had been made by BCBS before the jury was discharged. The court went on to say that BCBS’s verdict for 1989/90 in the amount of $282,187.98 for breach of contract was “consistent” with the evidence, and it allowed that verdict to stand.
The majority opinion discards the circuit court’s analysis and findings, though it does affirm the result reached by the court. First, it agrees with the court’s conclusion that recovery in both tort and contract by PAM was double recovery, or inconsistent as the circuit court put it, but in doing so, the majority fails to address BCBS’s failure to object before the jury was dismissed. The opinion then proceeds to reverse the trial court’s finding that the 1989/90 recoveries in favor of BCBS and PAM were consistent. The. majority finds, on the contrary, that these verdicts were inconsistent and holds that PAM is procedurally barred from raising the inconsistency on appeal because it failed to object to the inconsistent verdicts while the jury was still empaneled. The effect of the majority’s decision is to reduce PAM’s total award from $412,182.76 to $12,182.76.
Clearly, the majority’s disparate analysis of the two post-trial motions cannot be meshed or made compatible. Either objections asserting inconsistent verdicts must be made before the jury is dismissed or not. PAM should not be penalized for what BCBS also failed to do. In short, both parties must be treated the same. Here, it is obvious that PAM was content with the verdicts which netted it $412,182.76 until BCBS called them into question. At the very least, after BCBS sought to unravel the verdicts, PAM should be accorded the right to raise its own theory of inconsistency.
I would reverse the trial court’s decision on the dual contract awards for 1989/90, and strike the award of $282,187.98 in favor of BCBS. Admittedly, our decisions hold that an objection to inconsistent verdicts must be made before the jury is dismissed. See, e.g., Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Ordinarily that is true. But in a case of this complexity involving several theories of recovery for multiple years and a counterclaim to boot it is unduly harsh and somewhat unrealistic to hold the jury at bay and require the lawyers to sift through the various verdicts searching for an inconsistency before the jury is dismissed. And, again, PAM was undoubtedly satisfied with the verdicts until BCBS called them into question and should not be sanctioned for a failure to object under such circumstances.
It is a dangerous business to tinker with jury verdicts. But when one enters into such uncertain territory, it cannot be for the benefit of only one party, particularly when both parties have advanced along the same course procedurally.
While agreeing with the results reached on the other issues, I respectfully dissent on this point.
Hays, J., joins. Kenneth S. Hixon, for appellant. Matthews, Cambell & Rhoads, P.A., by: George R. Rhoads and David R. Matthews, for appellee.