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LaManna v. Proformance Insurance Co.7/14/2005
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 permitted to decide the case. In discussing the verdict sheet the trial court stated:
I need a vote of at least six of you on these questions. It can't be 5:3. I need, the answer where it says vote on the right hand side, only three -- you only have three options there, 6:2, 7:1, 8:0. So, I'm not going to ask you how you voted.
So, I won't know how you voted. Some of you may disagree with a vote but as long as it's 6:2, 7:1, 8:0, that's all I want to know.
At the conclusion of the charge, both sides objected to the charge on damages. Neither side, however, raised an objection to the requirement that only six of the eight jurors had to agree to return a verdict. By a vote of six-to-two, the jury found in favor of defendant, and a judgment of no cause of action was entered.
Following the denial of her motion for a new trial, plaintiff appealed, raising five points of error. In her second point, plaintiff asserted that " s all eight members of the jury were permitted to deliberate with all interrogatories not being agreed upon by at least seven jurors the result is a non-viable verdict and as such a new trial is required." Plaintiff urged that because the parties failed to stipulate upon the record that eight jurors would decide the case or that less than a five-sixths verdict was acceptable, the six-to-two jury verdict violated Rule 1:8-2.
The Appellate Division affirmed the judgment with one member of the panel dissenting. LaManna, supra, 364 N.J. at 478-85. The majority noted that Article I, paragraph 9 of the New Jersey Constitution authorizes the Legislature to "provide that in any civil cause a verdict may be rendered by not less than five-sixt
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