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Lamanna v. Proformance Insurance Company12/5/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2003
In this personal injury action, plaintiff sought benefits under the uninsured motorist provision of an automobile insurance policy issued by defendant Proformance Insurance Company. After liability had been established in arbitration proceedings, the issue of damages was submitted to a jury in the Law Division with an instruction, to which there was no objection, that all eight jurors would deliberate and that agreement by six would be sufficient to return a verdict. By a 6-2 vote, the jury determined that plaintiff was not entitled to a monetary award, and a judgment of no cause for action was entered. Plaintiff appeals, and we affirm.
The only substantial question is whether the judgment should be vacated because the verdict was returned by a 6-2 vote. The first indication on the record of the trial court's decision that eight jurors would deliberate, and that the votes of six of them would be sufficient to decide the case occurred just prior to summation when the trial court gave copies to counsel of the proposed jury verdict form, which included this sentence:"[Note: A vote of at least six jurors is required.]" While the number of deliberating jurors was not stated, it is obvious that counsel understood that the eight jurors who had been chosen at the beginning of the trial would deliberate. During his charge to the jury, the judge expanded on the meaning of the verdict form, repeatedly stressing that six of the eight deliberating jurors could decide each of the submitted issues. Since the record contains no discussion of either issue prior to the verdict and certainly no indication of the parties' consent, the case was submitted to the jury in a manner inconsistent with Rule 1:8-2. After the 6-2 verdict was returned, plaintiff unsuccessfully moved for a new trial based on various grounds, including the violation of Rule 1:8-2. However, since the objection was not timely, plaintiff is not entitled to reversal on this ground unless she can satisfy the plain error rule, R. 2:10-2.
Under Article I, paragraph 9 of the New Jersey Constitution, the Legislature may provide for six-person juries in civil cases and"may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury." The Legislature has followed that course. N.J.S.A. 2B:23-1b states that" uries in civil cases shall consist of 6 persons unless the court shall order a jury of 12 persons for good cause shown." And N.J.S.A. 2B:23-17 states that" n any civil trial by jury, at least five-sixths of the jurors shall render the verdict unless the parties stipulate that a smaller majority of jurors may render the verdict."
Relying on Morin v. Becker, 6 N.J. 457 (1951), our dissenting colleague argues that N.J.S.A. 2B:23-17 is unconstitutional to the extent that it permits the parties in a civil action to stipulate to a majority verdict of less than five-sixths. This point was not advanced by appellant; nor was notice given to the Attorney General as is required by R. 2:5-1(h). In any event, we note that in Morin the Court dealt separately with the issue of the constitutionality of the statute which then governed civil jury verdicts, L. 1948, c. 120, ยง 1, and provided for five-sixths verdicts, and the issue of waiver. As to waiver, the Court said this:
The defendant asserts that we should consider the constitutional questions here raised because the trial court was without power or jurisdiction to enter a judgment issued on other than a unanimous verdict.
This argument is wholly without merit in view of the decision in Margolies v. Goldberg, 101
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