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Queen City Farms Inc. v. Aetna Casualty & Surety Co.9/9/1994
rom the disposal ponds would leak into groundwater." Instruction 4, Clerk's Papers of Appellant vol. 4, at 1116. QCF objected to the jury instruction, but did not object to the special verdict form.
The insurers argue that QCF has not properly preserved the subjective/objective issue for appellate review because it made no objection to the special verdict question incorporating the objective standard. Question No. 2 on the special verdict form asked: "Did there come a time . . . that Queen City Farms expected or intended, or should reasonably have expected, that materials would leak from its disposal ponds into groundwater?" Clerk's Papers of Appellant vol. 4, at 1132. The insurers' basic argument appears to be that the lack of any objection to this question constituted a waiver of QCF's objection. Additionally and more specifically, the insurers argue that QCF should have objected to the compound nature of the special verdict question so that a new trial would not have been necessary if QCF were to prevail on its argument for application of a subjective standard on review, and that QCF's failure to do so constituted a waiver of the factual issue of subjective expectation under CR 49(a).
CR 49(a), which governs the use of special verdict forms, provides in part:
If . . . the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his rights to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
The rule does not support the insurer's argument. As QCF correctly states, the subjective/objective issue was resolved on a summary motion brought before trial. The trial court refused to reconsider the matter. Under the trial court's ruling, the jury was to decide whether QCF subjectively or objectively expected or intended the leakage of material into groundwater. Under that ruling, there was no triable issue of fact as to whether QCF subjectively, and only subjectively, expected or intended the leakage. Thus, there was no further issue of fact about subjective expectation which should have been submitted to the jury.
Moreover, the case upon which the insurers rely does not support their argument. In Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988), a compound question combined separate elements in a way which led to ambiguity as to whether the jury found either or both of the elements. Both elements were at issue. Here, in contrast, there was no reason for the jury to decide the subjective expectation question separate from the objective expectation question, in light of the trial court's ruling that if either standard was met, coverage was precluded. Thus, although it cannot be determined whether the jury's verdict was that QCF subjectively, objectively, or both subjectively and objectively expected the leakage into the groundwater, it is obvious that the trial court would have had absolutely no reason to enter any findings on a subjective standard alone. Nor is there any need to "deem" any findings consistent with the judgment. Patently, this matter was submitted to the jury under the trial court's ruling that an objective standard applied, and under jury instructions that contained the objective standard. There was no waiver within the meaning of CR 49(a) of the right to a jury determination on the subjective standard.
The real question is whether QCF preserved its appeal of the subjective/ob
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