United States Court of Appeals,
Eleventh Circuit.
No. 95-8081.
The SHELBY INSURANCE COMPANY, Petitioner,
v.
Griffin STOCKS, III and Stocks Properties, Inc., Respondents.
May 13, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CA-92-129-ALB-AMER), J. Robert Elliott,
Judge.
Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior
Circuit Judge.
HILL, Senior Circuit Judge:
This is an interlocutory appeal from an order granting
appellees a new trial on damages only. For the following reasons,
we reverse.
I. BACKGROUND
The Shelby Insurance Company (Shelby) brought a declaratory
judgment action to determine its liability to Griffin Stocks, III
and Stocks Properties, Inc. (Stocks) for their claims under a fire
insurance policy. Stocks' claims, all growing out of the
destruction of a house and its contents by fire, were for separate
and distinct items, e.g., the destruction of the house, the
destruction of the contents, additional living expenses, penalties
and attorneys' fees. Shelby asserted that it was not liable to
Stocks because Stocks had committed arson, and made material
misrepresentations on the insurance application. Shelby also
asserted that Griffin Stocks III had no insurable interest in
either the dwelling or the contents. Stocks filed a counter-claim
for the insurance proceeds, prejudgment interest, bad faith
penalties and attorneys' fees.
After trial, the jury retired for its deliberations with a
verdict form which contained separate blanks for the amount of
recovery to be awarded for the dwelling, contents, additional
living expenses, penalties, and attorneys' fees. There was also a
place for the jury to check if prejudgment interest was due on any
judgment they might award. The jury returned a verdict for Stocks,
but awarded damages for only the dwelling, putting a zero in all
other blanks and indicating that no interest should be awarded.
Stocks filed a Motion for a New Trial or a New Trial Limited
to Damages Only. The district court granted the motion as to a new
trial on damages only, set aside the jury's verdict and vacated the
judgment. The district court then permitted Shelby to file a
petition for permission to appeal that order pursuant to 28 U.S.C.
§ 1292(b), and we granted the appeal.
II. ANALYSIS
The district judge elected to submit this case to the jury on
a verdict form prepared by Stocks and agreed to by both parties.
Each of Stocks' claims was listed separately. The jury returned
with a recovery for the destruction of the house, but without any
recovery for any other item. Stocks contends that this verdict is
internally inconsistent, because a finding that the insured was
entitled to recover for the dwelling must, of necessity, have
rested on a rejection of Shelby's defenses to coverage based upon
arson, material misrepresentations on the application, and no
insurable interest. Stocks urges, therefore, that some recovery
for the other items was demanded. This may or may not be the case.
We need not reach this issue, however.
After the close of the evidence, the district judge read the
following instruction to the jury:
If you find in favor of the insureds under the policy, you
would you (sic) this form. And it reads as follows: We the
jury find in favor of the defendants, that's the insured under
the policy, in the amount of and here I've written building
and I've put a blank out there with a dollar mark in front of
the blank. I next put contents. I've put a blank and put a
dollar mark. Then I've put additional living expenses, and
I've put a blank and a dollars mark. Then, I've put a line
there for a total of those three things. Of course, you may
find for them on one item and not on another. You might find
for them on all three. You may find for them on just one or
none. I'm just trying to make it easier for you to return a
verdict. The reason we want a total there is because I want
to make some insurance against a mistake being made in the
figures. All right. (emphasis supplied)
* * * * * *
Now, I want to make it clear to you that just because you have
awarded amounts up here doesn't mean that you've got to award
interest. That is where the yes or no comes in. It doesn't
mean that you've got to award a penalty, you may. You haven't
got to. It can be any amount up to 25 percent of this total
penalty. And just because I've got attorneys' fees down here
doesn't mean that you have got to award attorneys' fees. You
may, but you don't have to.
After the jury was charged, the district judge told them:
Now, we have in this Court what we think is a good practice,
and that is after I have given you the law in charge, we give
the lawyers on each side an opportunity to make any criticism
that they may wish to make of my charge to you. And we let
them do that outside of your hearing and before you begin the
deliberation on the verdict. So in just a moment, the marshal
will take you on up to the jury room. I'll hear from the
lawyers. After I hear from them if I decide anything further
is necessary, I'll bring you back down for further
instructions.... [Y]ou go with him now and we will see what
happens.
After the jury departed, the district judge inquired of both
counsel whether they had any exceptions to note with respect to
these instructions. Stocks made no objection to the instruction
that the jury "might find for [Stocks] on one item and not on
another.... You may find for them on just one or none" (emphasis
supplied). Rightly or wrongly, the district judge told the jurors,
without objection from Stocks, that they could render what might
otherwise be inconsistent verdicts. Neither of the courts'
counselors suggested to the judge that there was any error in this.
It is too late now for Stocks to complain that the jury should
not have been permitted to render such a verdict. Mosher v.
Speedstar Division of AMCA Int'l., Inc., 979 F.2d 823, 825 n. 5
(11th Cir.1992). Fed.R.Civ.P. 51 provides:
No party may assign as error the giving or the failure to give
an instruction unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the
matter objected to and the grounds of the objection.
After preparing the verdict form which provided for separate
recoveries on each element of Stocks' claim, and having failed to
object to the district court's instruction which specifically
permitted the verdict the jury ultimately returned, Stocks cannot
now complain of that result.
No other issue appearing worthy of discussion, the order of
the district court granting a new trial as to damages is reversed,
the verdict of the jury and the judgment based thereon are
reinstated.
REVERSED