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LaManna v. Proformance Insurance Co.

July 14, 2005

ROSEANN LAMANNA, PLAINTIFF-APPELLANT,
v.
PROFORMANCE INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND JOHN DOES 1-10 (SAID NAMES BEING FICTITIOUS, REAL NAMES UNKNOWN) AND ABC COMPANIES 1-10 (SAID NAMES BEING FICTITIOUS, REAL NAMES UNKNOWN), DEFENDANTS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 364 N.J. Super. 473 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court addresses the constitutionality of N.J.S.A. 2B:23-17 (Section 17), which authorizes parties in a civil action to stipulate that a smaller majority of jurors than five-sixths may render the verdict. In addition, if the Court deems Section 17 constitutional, it must decide whether it was harmless error to accept a less than five-sixths jury verdict where the parties failed to comply with Rule 1:8-2 by not agreeing to do so "on the record prior to commencement of deliberations."

Roseann LaManna was injured while a passenger in a motor vehicle that was cut off by an unknown vehicle, causing the driver to lose control and strike a concrete barrier on the Garden State Parkway. LaManna sought benefits under the uninsured motorist provision of an automobile insurance policy issued by Proformance Insurance Company (Proformance).

After liability was established at an arbitration proceeding, the issue of damages was tried before a jury. At the conclusion of the trial, the court charged the eight person jury on the law. All eight jurors were permitted to decide the case and the record does not disclose why two of the eight jurors were not selected as alternates. Neither party objected to the requirement that only six of the eight jurors had to agree to return a verdict. By a vote of sixto-two, the jury found in favor of Proformance, and a judgment of no cause of action was entered.

Following the denial of a motion for a new trial, LaManna appealed to the Appellate Division. She raised several points of error, including the claim that all eight members of the jury were permitted to deliberate and that all the deliberation interrogatories were not agreed on by at least seven jurors, resulting in a nonviable verdict and the need for a new trial. In addition, LaManna urged that because the parties failed to stipulate on the record that a less than five-sixths verdict was acceptable, the six-to-two verdict violated Rule 1:8-2.

The Appellate Division affirmed the verdict with one member of the panel dissenting. The majority, noting that Article I, paragraph 9 of the New Jersey Constitution authorizes the Legislature to provide for not less than five-sixths verdict in a civil case, found Section 17 constitutional. The majority concluded that because LaManna did not object to the less than five-sixths vote, she waived her right to argue on appeal that the verdict violated the State Constitution. The dissent found the authorization in Section 17, permitting a verdict based on less than a five-sixths majority, contravened the State Constitution. The dissent also disagreed with the majority's plain error analysis, concluding a reversal would have the salutary effect of deterring future similar errors. Lastly, the dissent urged that the failure of the parties to agree to a less than five-sixths verdict on the record violated Rule 1:8-2, necessitating a new trial.

The matter is before the Court as an appeal as of right based on the dissent in the Appellate Division.

HELD: N.J.S.A. 2B:23-17 is constitutional and any error in failing to have the parties agree on the record to a less than five-sixths jury verdict was harmless.

1. The clear and unambiguous language of Article I, paragraph 9 demonstrate that the drafters of the 1947 Constitution intended to make the right to a trial by jury inviolate and to authorize the Legislature to provide that a verdict in a jury trial may be rendered by not less than a five-sixths majority. Nonetheless, those constitutional guarantees do not prohibit the Legislature from authorizing the parties to agree to a different number of jurors or to agree to a lesser majority verdict than five-sixths. This State's jurisprudence recognizes that constitutional rights may be waived. So long as the party is given fair opportunity to request his or her constitutional right to a civil jury trial subject to a five-sixths verdict, there is no impediment to the parties consenting to waive that right. (Pp. 6-15)

2. Both the right to a jury trial and the right to a jury verdict of not less than five-sixths majority are provided for in our Constitution. There is no sound reason to distinguish between the right to waive a jury trial completely and the right to waive a jury verdict by five-sixths majority. Just as the parties in a civil action may waive their right to a jury, they may waive their right to a jury verdict of five-sixths majority. Giving N.J.S.A. 2B:23-17 the requisite presumption of validity, the Court finds that it is constitutional. In adopting Section 17, the Legislature provided for an orderly and informed manner for the parties to waive their right to a jury verdict of not less than five sixths. Accordingly, the parties may consent to have their case decided by fewer or greater than the six persons and by a greater or lesser percentage than five-sixths. (Pp. 15-19)

3. On the issue of the failure to fully comply with the requirement in Rule 1:8-2 of placing the agreement to a less than five-sixths jury verdict on the record prior to commencement of deliberations , the Court agrees with the reasoning and conclusion of the Appellate Division majority rejecting LaManna's plain error argument. However, trial courts should fully comply with Rule 1:8-2 and any stipulation to accept less than a five-sixths jury verdict should be noted on the record. (P. 19)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, dissenting, in which JUSTICE LONG joins, is of the view that the framers of the New Jersey Constitution held the view that a civil jury trial should be decided by a verdict of not less than five-sixths of the jury and said so in Article I, Paragraph 9. Any statute, rule, or Appellate Division opinion that says otherwise is in conflict with our State Constitution.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI and RIVERA-SOTO join in JUSTICE WALLACE'S opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE LONG joins.

The opinion of the court was delivered by: Justice Wallace

Argued November 9, 2004

Reargued March 28, 2005

In this personal injury action, we consider the constitutionality of the statutory provision, N.J.S.A. 2B:23-17, which authorizes parties in a civil action to stipulate that a smaller majority of jurors than five-sixths may render the verdict. If we conclude the statute is constitutional, we must also decide if it was harmless error to accept a less than five-sixths jury verdict where the parties failed to comply with Rule 1:8-2 by not agreeing to do so "on the record prior to commencement of deliberations." At trial, neither party objected to the procedure utilized by the trial court to allow eight jurors to deliberate and to require only six of the eight jurors to agree on the verdict. The jury returned a six-to-two verdict in favor of defendant. The Appellate Division affirmed. LaManna v. Proformance Ins. Co., 364 N.J. Super. 473 (2003).

Because of a dissent in the Appellate Division, id. at 478-85, the case is before us as a matter of right. R. 2:2-1(a)(2).

We now conclude that N.J.S.A. 2B:23-17 is constitutional and that any error in failing to have the parties agree on the record to a less than five-sixths jury verdict was harmless. We affirm the judgment of the Appellate Division.

I.

Plaintiff Roseann LaManna was injured while a passenger in a motor vehicle that was cut off by an unknown vehicle, causing the driver to lose control and strike a concrete barrier on the Garden State Parkway. Plaintiff sought benefits under the uninsured motorist provision of an automobile insurance policy issued by defendant Proformance Insurance Company.

After liability was established in arbitration proceedings, the issue of damages was tried before a jury. At the conclusion of the trial, the trial court charged the eight person jury on the law. The record does not disclose the reason that two of the eight jurors were not selected as alternates, but all eight jurors were ...


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