Jury trials have a lot of moving parts to them. In my many years of practice, courts, counsel and jurors do an amazing job and get the answers right most of the time. However, what happens when the jury verdict is inconsistent and the jury’s answers are inconsistent. The Texas Supreme Court plurality opinion in USAA Tex. Lloyd’s Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018) provides some guidance and also reminds parties that they can waive the conflict in the jury’s answers by failing to voice a complaint before the jury is discharged.
In Menchaca, the jury found the insurer had not failed to comply with its obligations under the insurance policy, but found in response to another jury question that the insurer violated the insurance code section regarding failing to pay the claim for policy benefits without conducting a reasonable investigation. And so, the conflict exists because an insured cannot recover policy benefits for an insurer’s statutory violation if the policy does not provide the insured a right to receive the benefits.
When reviewing a jury verdict for conflicts, the threshold question is whether the findings are about the same material fact. Courts must try and reconcile apparent conflicts in the jury’s findings if reasonably possible in light of the pleadings and evidence, the manner of submission and the other findings considered as a whole. Sometimes the conflict between the jury’s findings are fatal. A fatal conflict exists when the answer to one jury question requires a judgment in favor of the plaintiff and the answer to another jury question requires a judgment in favor of the defendant. Since a trial court should not enter a judgment based on a verdict containing a fatal conflict, what should the court do?
If the jury’s answers are in a fatal conflict, the trial court must give the jury written instructions regarding the nature of the conflict and allow them to retire for further deliberations. See Tex. R. Civ. P. 295. To preserve error on conflicting findings, a party must object to the conflicting findings by the jury before the trial court discharges the jury. See USAA Tex. Lloyd’s Co. v. Menchaca, 545 S.W.3d 479, 518-519 (Tex. 2018). What the jury intended by the conflicting answers is best determined by the jury itself, and that is the solution that TRCP 295 requires.
Jury trials are full of landmines from the opening statement to the jury charge. Preserving error is the key because, despite the determined efforts of the parties and courts to get the charge right, there are very few jury trials where an error does not exist. Under Texas Rule of Appellate Procedure 33.1(a)(1)(A), appellate courts will not consider an error that was properly raised in the trial court. While there is a fundamental error exception to this rule, trying to raise an exception after the fact is easier said than done. The better practice is to draft your charge at the start of the case to use as a roadmap, modify it as you go and then remain vigilant to make sure the jury findings are consistent.
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