\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In South Carolina, as in other jurisdictions, plaintiffs who seek the same or overlapping damages under multiple theories of recovery cannot recover the same damages twice.1 In recent cases addressed by the S.C. Court of Appeals and the U.S. District Court for the District of South Carolina, the jury has been provided a verdict form that required it to find an amount of damages for each cause of action. However, as these cases illustrate, problems may arise as to whether the jury intended for the damages awarded under each cause of action to be aggregated.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0When the damages are identical for each cause of action, the problem can be avoided simply by using a general verdict form as to the amount of damages. However, general verdict forms, which are typically used by courts, present challenges of their own for reviewing courts.2 For example, if one claim is overturned, either in a post-trial motion or on appeal, a general verdict as to damages may prevent a reviewing court from being able to determine whether the jury based its damages award on the overturned claim.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article discusses the factors to consider in determining whether to request or consent to a special verdict form, how to avoid an ambiguous verdict, and how to handle an ambiguous verdict if it is rendered.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Recent cases that illustrate the problem
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The S.C. Court of Appeals has addressed two recent cases in which the jury returned a verdict finding an amount of damages for each cause of action rather than a general verdict on damages: Keeter v. Alpine Towers International, Inc.3 and Allegro, Inc. v. Scully.4 The Court of Appeals' opinion in Keeter no longer has precedential effect since the Supreme Court ordered the Court of Appeals to depublish its opinion following a consent dismissal by the parties, and the court in Allegro, Inc. did not reach the election issue. Nevertheless, these opinions illustrate how these problems may arise and provide useful guidance on avoiding and handling ambiguous verdicts.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Keeter, the plaintiff broke his back as a result of falling from a climbing tower designed, manufactured and installed by Defendant Alpine Towers.5 The plaintiff brought claims against Alpine Towers for strict liability, negligent design and negligent training. The verdict form required the jury to write its verdict and a damages amount for each cause of action. The jury awarded $500 in actual damages on the strict liability claim, $900,000 in actual damages and $160,000 in punitive damages on the negligent design claim, and $2,500,000 in actual damages and $950,000 in punitive damages on the negligent training claim.6 Before the jury was dismissed, the plaintiff moved the court to ask the jury whether it intended the damages award to be cumulative.7 The trial court asked only the forelady who indicated the jury intended the award to be cumulative.8
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The trial court found that the plaintiff had to elect amongst these claims and entered judgment in the amount of $2,500,000 in actual damages and $950,000 in punitive damages on the negligent training claim.9 In its opinion, which is no longer published, the Court of Appeals held that the verdicts should be aggregated to $3,400,500 in actual damages and $1,110,000 in punitive damages because the jury so intended.10 It based its finding on the forelady's indication that the jury intended the award to be cumulative and the fact that the plaintiff sought only one remedy11
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Allegro, Inc. v. Scully involved an action by a corporation against its former officer and director who started a competing business, as well as the newly formed competitor and another former employee who went to work for the competitor. 12 The trial court submitted 11 claims to the jury, including nine claims against the former officer, one claim against the former employee, and a conspiracy claim against all defendants.13 The jury returned a verdict for the plaintiff awarding $160,000 in actual damages on each of the 11 claims.14 It also awarded $75,000 in punitive damages on the claim against the former employee and $175,000 in punitive damages on the conspiracy claim.15
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0After the verdict was announced, the court questioned the foreperson as to the total amount of damages the jury intended to award, and the response was $1,760,000.16 The foreperson further stated that the jury intended to award $250,000 in punitive damages and agreed with the trial judge that the total was $2,010,000.17 The trial court completed a Form 4 order stating that the total amount of actual and punitive damages was $2,010,000 and denied the defendants' post-trial motions.18
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Allegro, Inc. court did not reach the issue of whether the verdict should have been aggregated but did provide the following guidance on dealing with an ambiguous verdict:
[w]e reiterate that we do not approve the practice of asking a question or responding only to the foreperson regarding a substantive issue about the law or the verdict. When a question arises regarding the law or the verdict form, the better practice is to confer with counsel outside the presence of the jury to discuss the proper response, and then instruct the entire jury in court or in writing and return them to the jury room to act in accordance with the court's instructions. ... If a jury verdict form is ambiguous or unclear, the jury should be returned to the jury room in order to clarify or conform the verdict to its intent before the jury is excused.19
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The U.S. District Court for the District of South Carolina dealt with a similar issue in Uhlig v. Shirley.20 In Uhlig, the plaintiff sued the former employee of its assignor and the competing business that he founded.21 The jury returned a verdict against the former employee and his company for misappropriation of trade secrets, breach of an employment agreement, tortious interference with an employment agreement, breach of fiduciary duty, aiding and abetting the breach of fiduciary duty, and tortious interference with prospective contracts.22 The jury was required to provide an amount for each cause of action and awarded various amounts for each, ranging from $250,000 to $1,500,000.23 Although not requested to do so, the jury also totaled these amounts.24
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Uhlig court held that the plaintiff could recover for misappropriation of trade secrets and tortious interference with prospective contracts, but it had to elect from the remaining claims.25 The court explained that the plaintiff had submitted trade secrets that were separately categorized from information that it categorized as merely confidential.26 It also found that the common law claim for tortious...