Ashley Smith – May 2, 2013
Trial attorneys can comment at length about the countless hours, resources and mental exhaustion that go into preparing and trying a case before a jury. Why would anyone submit themselves, or their client, to the pains of a jury trial if, after the jury returns a verdict, the court can simply decide it will consider the jury’s verdict advisory? This scenario is exactly what the district court did in Smith Flooring, Inc. v. Pennsylvania Lumbermen’s Mutual Insurance Company.
In Smith Flooring, one of the insured’s buildings collapsed under the weight of sleet and ice, and the insured filed a claim with its commercial insurance carrier for the loss. The carrier denied the claim, asserting the building was excluded from coverage under the insurance policy. The insured brought a breach of contract claim and declaratory judgment action, and the carrier counterclaimed for reformation of the policy. At trial, the jury found in favor of the insured on both the breach of contract and reformation claims, awarding $300,000 in damages. Following the trial, the district court granted the carrier’s motion for judgment notwithstanding the verdict, reversed the jury’s verdict, and treated the jury’s verdict as advisory. In deciding to treat the jury’s verdict as advisory, the district court stated:
A court’s power to treat a jury’s verdict as advisory and issue its own findings of fact and conclusions of law stems from the Federal Rules of Civil Procedure. Rule 39 provides that: ‘In an action not triable of right by a jury, the court, on motion or on its own[,] may try any issue with an advisory jury.’ Fed. R. Civ. P. 39(c) (internal marks omitted). Rule 39(c) does not require that the parties receive advance notice that the court intends to treat the jury as advisory. Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 941 (8th Cir. 2007) (quoting Ind. Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumbia Co., Inc., 195 F.3d 368, 375 (8th Cir. 1999)). A court’s determination to treat the jury’s verdict as advisory will only be reversed by a reviewing court if the complaining party demonstrates that it was prejudiced by that determination. See id. ‘[F]ailure to give advance notice alone, absent some demonstrable prejudice to the complaining party, would not be a basis for reversal.’ Ind. Lumbermens, 195 F.3d at 375.1
On appeal, the Eighth Circuit Court of Appeals upheld the district court’s ruling, but found that the district court erred in treating the jury’s verdict as merely advisory.
The district court erred in finding that there were no issues common to the parties’ legal and equitable claims. We conclude that [the insured] had a Seventh Amendment right to a trial by jury on the common issue of what the terms of the intended contract were. The district court also erred in treating the jury’s verdict as merely advisory under Federal Rule of Civil Procedure 39 insofar as this issue is concerned.2
The Eighth Circuit ultimately agreed with the district court that judgment for the carrier was appropriate. The appellate court disagreed that the jury’s verdict should be advisory, but upheld the district court’s decision to substitute its own findings of fact for those of the jury when it granted the motion for judgment notwithstanding the verdict.
Courts should be cautious when treating jury verdicts as merely advisory or when substituting their own findings of fact for those of the jury. The jury system is central to the judicial process and juries are generally afforded great deference by courts. As Thomas Jefferson stated, “trial by jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
1 Smith Flooring, Inc. v. Pennsylvania Lumbermen’s Mutual Insurance Company, no. 09-3237 (W.D. Mo. Feb. 28, 2012).
2 Smith Flooring, Inc. v. Pennsylvania Lumbermen’s Mutual Insurance Company, no. 12-1786 (8th Cir. April 26, 2013).