concurring.
I agree with the majority on all issues. I would, however, seize the opportunity presented by the Dealership's challenge to the forms of verdict furnished in this case to address a problem which has plagued trial judges and lawyers since the amendment of the Indiana Comparative Fault Act in 1990.
The Indiana Comparative Fault Act was adopted by the General Assembly in 1988. As adopted, section 6 of the Act directed trial courts to furnish forms of jury verdicts that required the disclosure of the percentage of fault charged against each party and the calculations made by the jury to arrive at their final verdict. IC 34-4-83-6, as added by P.L. 817-1983, SEC. 1.
In 1990, the section of the Act dealing with forms of verdict was amended to provide:
"Forms of verdict; disclosure requirements
The court shall furnish to the jury forms of verdicts that require only the disclosure of:
(1) the percentage of fault charged against each party and nonparty; and
(2) the amount of the verdict against each defendant. f
If the evidence in the action is sufficient to support the charging of fault to a nonparty, the form of verdict shall require a disclosure of the name of the nonparty and the percentage of fault charged to the non-party." f
IC 834-4-83-6,. Amended by P.L. 121-1990, SEC. 10. The 1990 amendment has caused the confusion which prompts this concurrence. A literal application of the directive would prevent the trial court from furnishing a general verdict form for the defendant. Moreover, the deletion of the calculation provisions without also deleting the disclosure of the fault percentages invites the parties, their lawyers and the court to question whether the calculations were carried out in accordance with the Act. See, eg., Buckland v. Reed, (1994), Ind.App., 629 N.E.2d 1241. Plaintiffs may question whether the jury made a double deduction for fault charged to them and defendants may question whether any deduction was made. Juries, themselves, may question whether the amount of the verdiet is what the plaintiff will actually receive.
In the instant action, the trial judge attempted to avoid such questions and such confusion. By the furnishing of a verdict form which provided for the disclosure of the percentage of fault and the total damages sustained by the plaintiff without regard to fault, he assumed the responsibility for the appropriate calculation. This calculation was carried out in the judgment which he entered.
In 1983, the Indiana Supreme Court amended Trial Rule 49 of the Indiana Rules of Procedure and abolished special verdicts and interrogatories to the jury. Prior to such abolition, such verdicts and interrogatories were used to test the jury's verdict. By abolishing such special verdicts and interrogatories, the Court placed its faith in juries to reach correct decisions.
I believe that IC 84-4-33-6, by directing the trial court to tender forms of verdict requiring the disclosure of the percentage of fault, directs the trial court to tender an interrogatory to the jury. As such, it is contrary to the provisions of TR. 49.
The Indiana Supreme Court in State, Through Highway Dept. v. Snyder (1992), Ind., 594 N.E.2d 783, declined an invitation to ' treat verdict forms required by the Indiana Comparative Fault Act as a special verdict or interrogatory. That invitation should be extended onee again.