                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-1351


VIGILANT INSURANCE COMPANY OF NEW YORK,       As    Subrogee   Of
Spartanburg Regional Healthcare System,

                 Plaintiff – Appellant,

           v.

MCKENNEY'S INC.,

                 Defendant – Appellee,

           and

ROBINS & MORTON CORPORATION,

                 Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.    J. Michelle Childs, District
Judge. (7:09-cv-02076-JMC)


Argued:   March 19, 2013                    Decided:   May 24, 2013


Before SHEDD, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Davis joined.      Judge Keenan wrote a separate
opinion concurring in the judgment.


Thomas David Higgins, Jr., COZEN O'CONNOR, Charlotte, North
Carolina, for Appellant.   Kimila Lynn Wooten, ELMORE GOLDSMITH,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      Vigilant Insurance Company of New York (“Vigilant”) appeals

the denial of its motion for a new trial on its negligence cause

of action against McKenney’s, Inc. (“McKenney’s). We affirm.

                                          I

      In 2006, a water leak occurred at a Spartanburg Regional

Healthcare System (“Spartanburg Regional”) facility located in

Spartanburg, South Carolina. Spartanburg Regional filed a claim

with Vigilant, its property insurance carrier, for damage to its

property and medical equipment, and Vigilant paid the claim.

Thereafter, Vigilant (as subrogee) filed this lawsuit against

Robins   &    Morton    Corporation       (“RMC”),        which    was   the   general

contractor      for     the     Spartanburg          Regional       facility,       and

McKenney’s,     which    was    the   plumbing        sub-contractor.          Vigilant

alleged that the leak occurred when two pipes integrated into

the   roof    drain    system    of   the     Spartanburg         Regional     facility

separated during a rainstorm.

      The case proceeded to a jury trial on two causes of action:

breach   of     contract        against       RMC    and     negligence         against

McKenney’s.    Without     objection      from      the    parties,      the   district

court instructed the jury concerning these causes of action and

submitted a verdict form that presented three parts for the jury

to complete. The first and second parts of the form asked the

jury simply to render a verdict on the breach of contract and

                                          3
negligence causes of action, respectively. The third part asked

the jury to state the amount of actual damages, if any, to which

Vigilant    was    entitled    if   the       jury   rendered   a   verdict   for

Vigilant on either cause of action. In the first part of the

verdict form, the jury found in RMC’s favor on the breach of

contract cause of action. In the second part, the jury found in

Vigilant’s favor on the negligence claim. In the third part, the

jury entered “$0.00” as the negligence damages amount.

     Immediately after the verdicts were published, the district

court thanked the jury members for their service and sent them

to the jury room, explaining: “I will need to speak with the

parties just one moment. And then you all will be excused.” J.A.

339. 1 The court then asked whether the parties took exception to

the verdicts, to which Vigilant’s counsel responded: “Yes, Your

Honor, plaintiffs do in regards to the verdict or the finding on

damages.”    Id.    After     counsel     for    McKenney’s     indicated     that

McKenney’s had no exceptions, the court stated to Vigilant’s

     1
       The court reporter’s notation at this point in the trial
transcript reads “Whereupon, the jury was excused from the case
at approximately 6:21 p.m.” J.A. 339. Contrary to Vigilant’s
contention that the jury was discharged at that time, we believe
that the district court’s quoted statement makes it clear that
the jury had not in fact been discharged. See generally Summers
v. United States, 11 F.2d 583, 586 (4th Cir. 1926) (noting that
a jury is not discharged even if the court stated otherwise as
long as it “remains an undispersed unit, within control of the
court, with no opportunity to mingle with or discuss the case
with others”).



                                          4
counsel:     “[Y]ou’ll       have    the       appropriate      time      to   submit       your

issues with respect to that in writing in accordance with our

local federal rules.” J.A. 340. Vigilant’s counsel thanked the

court, and the court then adjourned.

       Several weeks later, Vigilant moved for a new trial against

McKenney’s, arguing that the zero damages negligence verdict is

inconsistent         under    South        Carolina          law.     Vigilant         pointed

primarily to Stevens v. Allen, 536 S.E.2d 663, 666 (S.C. 2000),

in which the state supreme court noted that a verdict “assessing

liability against the defendant but awarding the plaintiff zero

damages is inconsistent and contrary to South Carolina law.”

After explaining that a negligence cause of action has three

elements     (duty     of    care,    breach          of    that     duty,     and    damages

proximately caused by the breach) the Stevens court held (1) “if

a   jury     finds     the    plaintiff             has    failed    to     prove      damages

proximately     caused       by     the    defendant’s         negligence,           then   its

verdict should be for the defendant,” and (2) “the proper and

most    consistent      approach          of    treating       such       verdicts     is    to

require, upon request, the trial court to re-submit the matter

to the jury. If the jury cannot reach a consistent verdict, the

trial court may then order a new trial nisi or a new trial

absolute.” Id.

       The   district       court    denied         the    motion,    stating:        “Because

Vigilant did not bring the alleged inconsistency to the court’s

                                                5
attention or move for re-submission of the matter to the jury,

Vigilant   may   have    waived   its       right   to   seek   a   new    trial.

Notwithstanding any waiver by Vigilant of the right to seek a

new trial, the court finds the verdict rendered in this case to

be consistent with the evidence presented at trial.” J.A. 358. 2

The court explained that it had considered the entire record,

including the jury instructions and verdict form, and concluded

that “the jury’s verdict and damage assessment can be logically

harmonized and the jury’s verdict should be sustained.” J.A.

362.

                                    II

       We review the denial of a new trial motion for abuse of

discretion. Gregg v. Ham, 678 F.3d 333, 342 (4th Cir. 2012). A

district court abuses its discretion when it acts arbitrarily or

irrationally,    fails   to   consider      judicially    recognized      factors

       2
       Regarding waiver, the district court looked to White v.
Celotex Corp., 878 F.2d 144, 146 (4th Cir. 1989), in which we
interpreted Fed. R. Civ. P. Rule 49(b) and explained: “Proper
respect for the Rule mandates that failure to bring any
purported inconsistencies in the jury’s verdict to the attention
of the court prior to the release of the jury will constitute a
waiver of a party’s right to seek a new trial.” The court noted
that although “Vigilant indicated that it took exception to the
verdict, [Vigilant] did not specifically mention any grounds for
the exception. Particularly, Vigilant did not note any perceived
inconsistency in the verdict or request that the jury conduct
further deliberations to clarify the verdict.” J.A. 358. To the
extent that Rule 49(b) is pertinent to this case, we note that
the state court procedure outlined in Stevens is consistent with
our decision in White.



                                        6
constraining    its   exercise    of    discretion,     relies       on   erroneous

factual or legal premises, or commits an error of law. United

States v. Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009).

Vigilant     primarily     contends,        as   it   did     below,      that   the

negligence verdict is legally inconsistent under South Carolina

law, and it argues that the district court abused its discretion

by concluding otherwise. For its part, McKenney’s argues that

the court correctly ruled that the negligence verdict is not

inconsistent. We agree with McKenney’s on this point.

     When,    as   here,    a   party    contends      that    the     verdict    is

inconsistent, we are required to determine whether the verdict

can be sustained on any reasonable theory. Atlas Food Sys. &

Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 599 (4th

Cir. 1996). Unquestionably, the negligence verdict in this case

resembles the negligence verdict in Stevens because the juries

in both cases rendered a general plaintiff’s verdict but awarded

zero damages. If our analysis ended with only this comparison,

we might be inclined to agree with Vigilant that the negligence

verdict in this case is inconsistent. However, Stevens does not

control the outcome of this case because this jury, like all

federal juries, “serve[d] under the district judge’s guidance,”

Price v. Glosson Mot. Lines, Inc., 509 F.2d 1033, 1036 (4th Cir.

1975), and the district court was not required to, and did not,



                                        7
instruct the jury to render its verdict in a form that accords

with Stevens. 3

     Instead, included among the district court’s instructions

are several instructions 4 that we believe, in conjunction with

the verdict form, fairly permitted the jury to render the zero

damages negligence verdict. See generally TransDulles Ctr., Inc.

v. USX Corp., 976 F.2d 219, 227-28 (4th Cir. 1992) (rejecting

claim of verdict inconsistency where verdict accords with jury

instructions); City of Richmond v. Madison Mgmt. Group, Inc.,

918 F.2d 438, 458 (4th Cir. 1990) (noting that even “‘a jury

     3
       Stevens states a general principle of South Carolina law,
but it does not require that a district court instruct the jury
in a certain manner, and neither party has argued to the
contrary. See Noel v. Artson, 641 F.3d 580, 588 (4th Cir. 2011)
(noting that appellate opinions “articulate general principles
of law that decide cases,” and they “are not jury instructions,
nor are they meant to be”).
     4
       See J.A. 40-41 (“Any failure to exercise due care on the
part of McKenney’s . . . in the construction of the building
would constitute negligence or carelessness. If such negligence
or carelessness on the part of McKenney’s did exist, . . . your
next question would be: Is the negligence or carelessness of
McKenney’s a proximate cause of the damages sustained by
Spartanburg Regional?”); J.A. 41 (“If you find McKenney’s
negligent per se, . . . you must still determine whether
Vigilant has suffered any damages and whether those damages were
proximately caused by McKenney’s negligence per se”); J.A. 44-45
(“If you find . . . that Vigilant has met its burden of proving
that McKenney’s is liable to it for negligence . . ., then you
must determine the amount of damages Vigilant should receive, if
any. . . . If Vigilant proves its claims, it also has the burden
of proving, again by a preponderance of the evidence, that it
suffered damages.”). Neither party has argued that these or any
other instructions are erroneous.



                               8
verdict inconsistent on its face does not require a new trial if

the inconsistency may reasonably be attributed to the jury’s

misunderstanding of the jury instructions’” (citation omitted)).

These instructions can reasonably be understood to have split

the elements of negligent conduct from the element of negligence

damages, telling the jury that if it first found McKenney’s to

have been negligent, it should then proceed to consider whether

Vigilant   was       entitled    to     damages.         This      interpretation    is

consistent with the verdict form, which asked the jury in part 2

to render a verdict on the “claim for negligence” and then, in

part 3, to state the amount of damages, “if any,” to which

Vigilant   was       entitled   (if    it        prevailed    on    either   cause   of

action). See Bensch v. Davidson, 580 S.E.2d 128, 131 (S.C. 2003)

(noting,   in        the    context     of        a   discussion      regarding      the

consistency     of    a    general    verdict,        that   the   “if   any”   damages

language in the verdict form indicated that the jury could find

no damages even if they found for the counterclaim plaintiffs on

their contract counterclaim). 5



     5
       Although Bensch involves a breach of contract claim, the
principle announced in Stevens (which is a negligence case)
would nonetheless be applicable generally because proof of
damages is a necessary prerequisite to both negligence and
breach of contract claims. See Fuller v. E. Fire & Cas. Ins.
Co., 124 S.E.2d 602, 610 (S.C. 1962) (breach of contract action
requires proof of damages). Thus, as a general rule, a zero
damages verdict would normally be improper in both types of
(Continued)
                                             9
                              III

     The instructions in this case sufficiently conveyed to the

jury that Vigilant bore the burden of proving each of the three

elements of the negligence claim, and we are satisfied that the

zero damages negligence verdict comports with the instructions.

Therefore, the verdict is not inconsistent, and the district

court did not abuse its discretion in denying the motion for a

new trial.

                                                        AFFIRMED




cases. Of course, for the reasons we have explained, the general
rule is inapplicable here.



                               10
BARBARA MILANO            KEENAN,    Circuit            Judge,    concurring      in     the
judgment.

      Vigilant      did    not    timely     object        to    the    jury   verdict    as

inconsistent.        Because the district court correctly recognized

that Vigilant waived its right to request a new trial, I would

affirm the judgment on that basis without addressing the merits

of the asserted inconsistency.

      Under Rule 49(b) of the Federal Rules of Civil Procedure,

counsel must object to any perceived inconsistency in the jury

verdict before the jury is discharged. 1                    White v. Celotex Corp.,

878 F.2d 144, 146 (4th Cir. 1989) (per curiam).                           The failure to

bring any such inconsistency to the court’s attention prior to

the release of the jury “will constitute a waiver of a party’s

right to seek a new trial.”            Id.

      The purpose of the rule is to encourage the efficiency of

the   trial    process       by     giving        the    jury     the    opportunity      to

reconcile     any    inconsistency         in      the     verdict      rather   than    by

requiring the parties to present all of the evidence again to

another jury.        Id.      If a party does not timely object, “the

court will effectively lose the opportunity to have the jury

reconsider the inconsistency,” and “[a]s a result, the primary




      1
       The parties do not dispute that Rule 49(b) is applicable
in this case.



                                             11
purpose      of     Rule    49(b)   will       have    been      defeated.”         Austin    v.

Paramount Parks, Inc., 195 F.3d 715, 726 (4th Cir. 1999).

       In this case, after the jury verdict holding McKenney’s

liable for negligence but awarding zero damages was published,

the district court inquired outside the presence of the jury

whether          there   were     any     objections.             Although    counsel        for

Vigilant objected “to the verdict or the finding on damages,”

he did not elaborate on the grounds for his objection or request

that       the    matter    be    resubmitted         to   the    jury.      The    jury     was

dismissed         at the conclusion of this hearing. 2

       Because       Vigilant's         counsel      did   not     apprise    the    district

court of the basis for his objection, the court was deprived of

the    opportunity           to     have       the     jury       remedy     the     asserted

inconsistency.             See Skillin v. Kimball, 643 F.2d 19, 20 (1st

Cir. 1981) (holding inconsistent verdict argument waived despite

counsel’s          remark    “that        he    thought          the   jury's       work     was

inconsistent” before the jury was discharged because “he did not

pursue any relief”).                Thus, a decision permitting Vigilant to

seek a new trial under such circumstances “would undermine the




       2
       Contrary to Vigilant’s assertion, the record reflects that
the jury was discharged only upon the conclusion of the hearing,
not before.   Accordingly, we disagree with Vigilant's argument
that Vigilant was not provided the opportunity to object.     See
Fed. R. Civ. P. 46.



                                                12
incentives for efficient trial procedure” underlying Rule 49(b).

Id.; see also White, 878 F.2d at 146.

     Accordingly,   in   my   view,   Vigilant   waived   its   right   to

request a new trial because counsel did not bring the asserted

inconsistency to the district court’s attention before the jury

was excused.   See White, 878 F.2d at 146.         I would affirm the

judgment on that basis without addressing the separate question

whether the verdict was inconsistent as alleged.




                                  13
