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Kava v. American Honda Motor Co.6/14/2002
the wrong standard, then, in basing its decision on a view of the evidence in the light most favorable to Honda. The estate is entitled to a ruling on its motion for a new trial using the correct standard. On remand, the trial court should exercise its discretion and independently weigh the evidence in determining if the jury's verdict was against the weight of the evidence.
In reaching this conclusion, we reject Honda's assertion that the estate waived any right to a new trial by failing to challenge the jury verdict as legally inconsistent before the jury was discharged. We have held that "challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury." But that rule has limited application here. The estate's failure to raise the issue of inconsistency before the court discharged the jury precluded it from later asserting that the inconsistency entitled it to a new trial as a matter of law. But that failure did not strip the estate of its right to move for a new trial on the discretionary ground that the verdict was against the weight of the evidence. Nor did the lack of objection bar the estate from arguing the apparent inconsistency of the verdicts as a factor that the trial court could consider in exercising its broad discretion to determine whether the totality of the circumstances warranted a new trial in the interest of justice.
Accordingly, we remand for reconsideration of the estate's motion for a new trial. On remand, the trial court should use its discretion and independently weigh the evidence to determine whether the verdict is against the weight of the evidence and whether to order a full or partial retrial in the interest of justice.
E. It Was Not an Abuse of Discretion to Exclude the Indemnity Agreement.
The estate claims that the trial court abused its discretion when it refused to instruct the jury on the indemnity agreement between Honda and Sitnasuak. That agreement made Sitnasuak a defendant in name only: Sitnasuak gave up its right to control the defense of the case and its cross-claims against Honda in exchange for Honda's agreement to indemnify Sitnasuak for any "conduit" liability. Prior to trial, the estate submitted a proposed jury instruction that would have informed the jury of the indemnity agreement. The trial court declined to include the instruction. The estate again proposed the instruction at the beginning of trial, and it was again rejected.
Honda argues that the proposed instruction on the indemnity agreement was properly excluded because it would have been analogous to disclosing that a defendant is insured; as Honda points out, evidence of the availability of insurance is inadmissible.
We disagree with Honda's analogy to insurance. An insurance policy protects the insured from liability by contractually shifting the financial, but not the legal, responsibility to the insurer. The insurer therefore accepts the risk of liability without regard to its own conduct. By comparison, Honda's own conduct made it responsible for breaching a tort duty that it owed directly to Gologergen; its indemnity agreement simply required it to reimburse Sitnasuak - an otherwise innocent party - for any "conduit" liability that Sitnasuak might have incurred as a result of being involved in Honda's chain of distribution. Thus, unlike an insurer, Honda was the principal wrongdoer and agreed to indemnify Sitnasuak for incidental liability that might arise from Sitnasuak's relationship with Honda. In effect, then, the agreement simply recognized that Sitnasuak had no real interest in the litigation.
But regardless of the indemnity agreement's nature and purpose, the
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