                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1762
                            Filed September 10, 2015


LEANNA RESETICH and ROSS RESETICH,
    Plaintiffs-Appellants,

vs.

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Paul L. Macek,

Judge.



      Plaintiffs appeal a district court order denying a new trial based upon

alleged juror misconduct. AFFIRMED.



      William J. Bribriesco and Anthony J. Bribriesco of William J. Bribriesco

& Associates, Bettendorf, for appellants.

      Eric M. Knoernschild and Amber J. Freyermuth of Stanley, Lande

& Hunter, P.C., Muscatine, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

         We must decide whether the district court erred in excluding a juror

affidavit proffered to support a claim of irregularity and misconduct in connection

with a jury’s damage award.

   I.       Background Facts and Proceedings
         Leanna Resetich was involved in a car accident with another vehicle. She

and her husband sued Leanna’s automobile insurance carrier for underinsured

motorist coverage and loss of consortium. The jury returned a verdict in favor of

the Resetichs for $48,000, but found Leanna 45% at fault.            Accordingly, the

district court reduced the judgment to $26,400.

         The Resetichs filed a motion for new trial. In part, they alleged irregularity

in the proceedings and misconduct.             In support of these allegations, they

attached a juror affidavit attesting that the jurors considered Leanna’s fault in

calculating damages, in contravention of an instruction “not [to] take into

consideration any reduction of damages due to Leanna Resetich’s fault.”

         The district court concluded “the affidavit [was] not admissible as

evidence” but, even if it was, “the affidavit [did] not bring into play any outside

influence or extraneous prejudicial information.” The court denied the irregularity

and misconduct grounds of the motion because the affidavit “relate[d] directly to

the jury’s internal deliberations.” The Resetichs appealed.

   II.      Juror Affidavit
         The Resetichs argue the district court “erred in ruling that the [] affidavit

was not admissible to support [their] [m]otion for a [n]ew [t]rial.”      State Farm

responds with error preservation concerns. On our review of the trial record, we
                                         3


are convinced the Resetichs preserved error. Accordingly, we proceed to the

merits. Because the Resetichs’ claims of irregularity and misconduct relate to

the substance of the verdict, our review is for errors of law.     See Lund v.

McEnerney, 495 N.W.2d 730, 732 (Iowa 1993); see also Weatherwax v. Koontz,

545 N.W.2d 522, 524 (Iowa 1996) (“The appropriateness of any inquiry into jury

deliberations is a legal question which we review on error.”).

       Iowa Rule of Evidence 5.606(b) governs the admissibility of the affidavit.

The rule states:

       [A] juror may not testify as to any matter or statement occurring
       during the course of the jury’s deliberations or to the effect of
       anything upon that or any other juror’s mind or emotions as
       influencing the juror to assent to or dissent from the verdict or
       indictment or concerning the juror’s mental processes in connection
       therewith, except that a juror may testify on the question whether
       extraneous prejudicial information was improperly brought to the
       jury’s attention or whether any outside influence was improperly
       brought to bear upon any juror. Nor may a juror’s affidavit or
       evidence of any statement by the juror concerning a matter about
       which the juror would be precluded from testifying be received for
       these purposes.

(Emphasis added.) The official comment to the rule states: “Rule 606(b) [now

Rule 5.606(b)], like Iowa common law, protects the sanctity of the jury room

regarding matters that inured in the verdict, while allowing disclosure of

extraneous misconduct.” Iowa R. Evid. 5.606 cmt.

       The matter the Resetichs complained of—failure to follow the instruction

on the verdict form—inhered in the verdict.      See Dudley v. GMT Corp., 541

N.W.2d 259, 261 (Iowa Ct. App. 1995) (“Any juror testimony regarding the jury’s

misunderstanding of the instruction is inadmissible.”). Accordingly, the district

court did not err in concluding the juror affidavit delving into this topic was
                                          4

inadmissible.   See Scwennen v. Abell, 471 N.W.2d 880, 888 (Iowa 1991)

(concluding juror affidavits attesting to consideration of one of the defendant’s

fault were “clearly part of the internal workings of the jury and so inhere in the

verdict” and “the statements may not be relied on to challenge the jury’s verdict”);

Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988) (concluding “[t]he district

court was correct to disregard affidavits of jurors concerning a quotient verdict”);

Abbot v. RJS Elec., No. 05-1959, 2006 WL 2872632, at *2-3 (Iowa Ct. App. Oct.

11, 2006) (concluding jurors’ statements as to how they reached an award

including “what parts of the record the jurors considered, which instructions they

followed, and how they mentally and emotionally reacted” could not be received

“[b]ecause those thought processes inhere[d] in the verdict”); see also

Weatherwax, 545 N.W.2d at 525 (expressing “grave doubts concerning the

admissibility of the juror affidavits or testimony as impeachment of [a] verdict” but

finding it unnecessary to decide admissibility of juror affidavits or statements).

       Prendergast v. Smith Laboratories, Inc., 440 N.W.2d 880 (Iowa 1989),

cited by the Resetichs, does not alter our conclusion. We acknowledge the court

concluded “juror testimony is competent to reveal a mistake in the rendition of an

otherwise unanimous verdict.” Prendergast, 440 N.W.2d at 884. But the court

went on to state, “If the issue were whether a verdict may be overturned because

it was induced by the jury’s misunderstanding of the court’s instructions, rule

606(b) would render juror testimony inadmissible for purposes of achieving that

result.”   Id.; see also Weatherwax, 545 N.W.2d 522 (“Our Prendergast . . .

holding[] mark[s] the outer limits of acceptable inquiry.”). Misunderstanding of

the instructions is precisely the issue raised by the Resetichs.
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       The Resetichs’ claims of irregularity and misconduct are premised on the

juror’s affidavit. Having concluded the district court did not err in finding the

affidavit inadmissible, we further conclude the irregularity and misconduct claims

necessarily fail and the court did not err in denying their new trial motion on these

grounds.

       AFFIRMED.

       Danilson, C.J., concurs; Doyle, J., dissents.
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DOYLE, J. (dissenting)

       I respectfully dissent. A new trial on the issue of damages is warranted.

       A special interrogatory on the verdict form asked the jury to “[s]tate the

amount of damages sustained by Leanna Resetich by [the fault of the driver of

the other vehicle, Steve Stumpff].” In response, the jury entered $12,000 for past

loss of use of body, $12,000 for present value of future loss of use of body,

$12,000 for past pain and suffering, $12,000 for present value of future pain and

suffering, and $0 for loss of spousal consortium. The jury totaled the damages at

$48,000. In calculating the amount of damages, the juror’s affidavit states:

       The jury subtracted . . . Leanna Resetich’s percentage of fault from
       [Stumpff’s] percentage of fault in arriving at a net percentage.
       Specifically, the jury did the following: 55% fault of [Stumpff] minus
       45% fault of Leanna Resetich is equal to 10%. The jury then
       multiplied the net percentage of 10% by $480,000.00 ( . . . Leanna
       Resetich’s total damages) to arrive at $48,000.00. The $48,000.00,
       10% of [the Resetichs’] total damages, was then divided by 4
       arriving at $12,000.00. The $12,000.00 was then placed into each
       category of damages of Past loss of use of body, Present value of
       future loss of body, Past pain and suffering and Present value of
       future pain and suffering.

In considering the Resetichs’ motion for new trial on the issue of jury irregularity,

the district court ruled:

              The [Resetichs] first argue that the motion for a new trial
       should be granted on the basis of irregularity by the jury. This
       irregularity is supported by an affidavit signed by a juror. The
       affidavit is not admissible as evidence. See Iowa R. Evid.5.606(b);
       Ryan v. Arneson, 442 N.W.2d 491, 495 (Iowa 1988); Horn v.
       Chicoine, 772 N.W.2d 269 (Iowa Ct. App. 2009). . . .
              Even if the affidavit was considered, the affidavit does not
       bring into play any outside influence or extraneous prejudicial
       information. Instead, the affidavit relates directly to the jury’s
       internal deliberations. For this reason, the [Resetichs’] first two
       grounds for a new trial are denied.
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The majority concludes the district court did not err in finding the affidavit

inadmissible. I disagree.

       Although one may reasonably view the juror affidavit as evidence of the

jury either ignoring or misunderstanding the instructions—evidence verboten

under Iowa Rule of Evidence 5.606(b)—I see it a little differently. I believe the

affidavit shows a mistake in the completion of the verdict form by the jury. My

reading of the affidavit is that the jury unanimously concluded Leanna Resetich’s

damages totaled $480,000, for that figure was the basis upon which the jury

made all its calculations.1 That figure was not entered on the line of the verdict

form reserved for total damages. Consequently, the verdict form does not reflect

the actual agreement reached by the jury.

       Rule 5.606(b) “does not suggest that juror testimony which aids in

establishing that which was agreed upon by the jury is prohibited.” Prendergast

v. Smith Labs., Inc., 440 N.W.2d 880, 883 (Iowa 1989). In other words, the rule

rendering juror testimony incompetent to impeach a verdict does not apply to

exclude evidence that the jury made an error in recording an otherwise

unanimous verdict. Id. Here, the jury unanimously agreed the total damages

were $480,000, but it erroneously recorded the total damages as $48,000 on the

verdict form. Insofar as the affidavit indicates the jury agreed to total damages of




1
  State Farm submitted five juror affidavits in support of its resistance to the motion for
new trial. The affidavits, all identical in language, do not dispute that the jury agreed
Leanna Resetich’s damages totaled $480,000. Instead, they all stated: “In determining
damages we concluded that [Leanna Resetich] had failed to prove that all of her injuries
resulted from the motor vehicle accident as opposed to existing before the accident or
being caused by other factors.”
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$480,000, I conclude the juror affidavit is admissible to reveal a mistake in the

rendition of the verdict.

       For the above reasons, the district court should have granted a new trial

on the issue of damages.2




2
   Reformation of the verdict would have also been an appropriate remedy had it been
requested. “We have allowed reformation of a jury verdict based on juror testimony that
it was inaccurately rendered even where the verdict form returned was facially consistent
and logical.” Prendergast, 440 N.W.2d at 883. Had the Pendergast jury made a finding
of total damages “and then gratuitously assumed the task of reducing the award by
eighty-five percent prior to entering it on the verdict form, we believe reformation of the
verdict, based on juror testimony, would have been proper.” Id.
