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Dykema v. Carolina Emergency Physicians3/4/2002
in entering JNOV for Companion?
2. Did the court err in holding that the statutory caps of the South Carolina Tort Claims Act were inapplicable to this case?
1. JNOV
The trial court held the jury's failure to award actual damages against Companion mandated the grant of JNOV to Companion. We disagree. We find Companion's failure to object prior to discharge of the jury results in a waiver of the right to challenge the verdict.
Here, after the jury returned its verdict finding $500,000 punitive, and no actual, damages against Companion, all parties were given an opportunity to review the verdict forms. Companion specifically declined the trial judge's invitation to request additional findings or corrections by the jury to the verdict form. The jury was thereby discharged, and Companion filed its post-trial motion for JNOV on March 1, 1999, ten days after the verdict was returned.
The trial court correctly held punitive damages generally are not recoverable in the absence of proof of actual damages. Limehouse v. Southern Ry. Co., 216 S.C. 424, 58 S.E.2d 685 (1950). However, the trial court erred in setting aside the verdict absent a timely objection. We decline to hold that a party may allow the jury to be discharged in the face of an obviously defective verdict, which could easily be corrected upon resubmission to the jury, in the hopes of gaining a reversal on appeal. Accordingly, we find Companion waited too late to voice its objection to the verdict.
This Court has repeatedly held that a party should not be permitted to sit idly by while a verdict erroneous in form is being returned and witness its receipt without objection and later, after the jury has been discharged, claim advantage of the error, thus invited by acquiescence. See Deese v. Williams, 237 S.C. 560, 118 S.E.2d 330 (1961). See also Washington v. Whitaker, 317 S.C. 108, 451 S.E.2d 894 (1995)(holding that party may not wait until JNOV to object to punitive damage award as this Court does not recognize a "plain error" rule); Limehouse v. Southern Ry., 216 S.C. 424, 58 S.E.2d 685 (1950)(where verdict is objectionable as to form, party who desires to complain should call that fact to the Court's attention when the verdict is published. Otherwise, the right to do so is waived); McAlister v. Thomas and Howard Co., 116 S.C. 319, 108 S.E. 94 (1921)(defect in the form of a verdict must be presented at the time it is published, and failure to do so waives the right to raise that matter later); Bethea v. Western Union Telegraph, 97 S.C. 385, 81 S.E. 675(1914) (irregularity of jury verdict awarding punitive but no actual damages must be called to the attention of the court at the earliest opportunity; otherwise it will be deemed to have been waived; waiting until jury separates and then urging irregularity as ground for new trial is too late).
These cases are consistent with our recent opinion in Stevens v. Allen, 342 S.C. 47, 535 S.E.2d 663 (2000), in which we held a verdict finding the defendant liable but awarding zero damages is inconsistent or incomplete and that, when the issue is raised, the matter should be resubmitted to the jury with instructions to either enter a verdict for the defendant or award some amount of damages. Accordingly, consistent with the wealth of authority in this state, we find Companion's failure to challenge the verdict upon being given an opportunity to do so results in a waiver. Therefore, the grant of JNOV to Companion is reversed, and the $500,000 punitive damage award is reinstated.
2. APPLICABILITY OF STATUTORY CAPS
The trial court ruled the statutory caps set forth in S.C. Code Ann. ยง 15-78-120(a)(3)&(4)
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