                                                                                     October 30 2012


                                       DA 12-0017

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2012 MT 245



PETE HORN and ELVA HORN,

          Plaintiffs and Appellants,

     v.

BULL RIVER COUNTRY STORE
PROPERTIES, LLC,

          Defendant, Third-Party
          Plaintiff and Appellee,

     v.

JERRY AMORUSO, Individually and d/b/a
JERRY’S REPAIR,

          Third-Party Defendant and Appellee.


APPEAL FROM:      District Court of the Twentieth Judicial District,
                  In and For the County of Sanders, Cause No. DV 10-03
                  Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                  Christopher Lee Decker, W. Adam Duerk; Milodrogovich, Dale,
                  Steinbrenner & Nygren, P.C.; Missoula, Montana

           For Appellee:

                  Robert Cameron; Gough, Shanahan, Johnson & Waterman, PLLP;
                  Helena, Montana

                  C.J. Johnson; Kalkstein, Johnson, & Dye, P.C.; Missoula, Montana
                                 Submitted on Briefs: August 8, 2012

                                            Decided: October 30, 2012


Filed:

         __________________________________________
                           Clerk




                             2
Justice Beth Baker delivered the Opinion of the Court.

¶1    After a five-day trial in October 2011, a Sanders County jury decided that

Appellee Bull River Country Store Properties, LLC, (Bull River) was not negligent in

connection with the plaintiffs’ claim that it sold water-contaminated diesel fuel.

Appellants Pete and Elva Horn (Horn) appeal the Twentieth Judicial District Court’s

order denying their motion for a new trial. We affirm.

¶2    We restate the issues as follows:

¶3    1.    Is Horn entitled to a new trial because Bull River’s reliance on the

settled-party defense authorized by § 27-1-703, MCA, violated his due process rights?

¶4    2.    Did the District Court abuse its discretion when it allowed Bull River to

question Pete Horn about his unrelated insurance claims?

¶5    3.    Did the District Court abuse its discretion when it denied Horn’s motion for

a new trial based on Bull River’s insurance-related arguments?

¶6    4.    Is Horn entitled to a new trial on the ground of juror misconduct?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶7    Pete Horn filed suit against Bull River and other fictitious defendants on

January 6, 2010. Horn alleged that he purchased forty-two gallons of water-contaminated

diesel fuel at the Bull River store in Noxon, Montana in late February and early March of

2008. Horn allegedly transported that fuel in five-and-six gallon jugs to his work site in

Grand Coulee, Washington, where he used heavy machinery to engage in landscaping

work on land owned by his son, Jason Horn. In mid-March 2008, Pete Horn used the
                                            3
diesel fuel from those jugs to fill the fuel tanks of two heavy machines that he owned—a

Case W-11 Articulated Wheel Loader (Case) and a Kobelco Sk045 Mini-Excavator

(Kobelco). The engines in those machines began to run poorly shortly thereafter.

¶8    Pete Horn and his mechanic, Jerry Amoruso, determined the engine problems

were caused by water-contaminated diesel fuel and Horn called Bull River to complain.

A Bull River employee informed Horn that the gas station had received multiple

complaints regarding recently-sold diesel fuel and invited Horn to call Bull River’s

owners, Robert and Carol Page. Horn called Carol Page, who told Horn to contact Bull

River’s insurance company, Farmers Insurance Exchange (Farmers).

¶9    Upon learning from other customers that there was a problem with its diesel fuel,

Bull River immediately shut down the diesel fuel pumps and called its diesel fuel

supplier, Moore Oil Co., Inc. (Moore Oil), to report the problem. Bull River and Moore

Oil each tested Bull River’s diesel tank for the presence of water, and each found a small

amount of water at the bottom of the tank. Bull River claimed the water was a normal

result of condensation and was pooled beneath the pump intake. Moore Oil nonetheless

pumped the water out of the tank and replaced the diesel fuel.

¶10   Horn formally reported a claim to Farmers for damages to both his Case and

Kobelco machines on April 15, 2008. Ruth Mikulic, an insurance adjuster who worked

for Farmers, handled Horn’s claim. Mikulic was responsible for resolving eleven other

claims against Bull River, all of which involved allegations that diesel fuel purchased at

the gas station in late February or early March damaged the engines of various vehicles
                                            4
and pieces of machinery. All eleven of those other claims settled without problem after

those claimants submitted documents to Farmers evidencing their repair costs.

¶11   Farmers ultimately tendered to Horn $16,042, but was unable to resolve Horn’s

remaining claims for damage to his machinery. Horn filed suit against Bull River on

January 6, 2010, claiming loss of use damages for both machines during a 1,320-day

period that began on March 10, 2008, and ended on the final day of the trial. The parties

stipulated that a reasonable rental rate for machines similar to Horn’s was $400 per day

for each machine. In total, Horn sought damages from Bull River in excess of one

million dollars. Horn argued that Farmers, as the agent of Bull River, inadequately

investigated the damage to his equipment and delayed payment of his claim. Since he did

not have the resources to pay for the equipment repairs himself, Horn claimed he was

unable to get back to work without Farmers’ payment of the costs.

¶12   Bull River claimed that Horn could not trace water contamination to fuel obtained

from its store and that if he did purchase contaminated fuel there, his injuries, if any,

were caused by others, including Horn’s mechanic and Horn himself for running the

damaged engines until they burned up. Bull River also argued to the jury that Horn had

failed to prove any negligence by Bull River or the Pages.

¶13   At the conclusion of trial, ten jurors agreed that Bull River was not negligent and

the jury returned a defense verdict. Horn filed a motion for a new trial on November 21,

2011, which the District Court denied on December 14, 2011. Horn appeals.



                                            5
                              STANDARD OF REVIEW

¶14    “Our standard of review of a district court’s denial of a motion for a new trial

depends on the basis of the motion.” Stebner v. Associated Materials, Inc., 2010 MT

138, ¶ 11, 356 Mont. 520, 234 P.3d 94. As such, the standards of review are discussed

below as applicable to the issues raised.       Our review of constitutional questions is

plenary. City of Billings v. Albert, 2009 MT 63, ¶ 11, 349 Mont. 400, 203 P.3d 828.

                                     DISCUSSION

¶15    1.   Is Horn entitled to a new trial because Bull River’s reliance on the

settled-party defense authorized by § 27-1-703, MCA, violated his due process rights?

¶16    Although Horn’s original complaint named only Bull River and fictitious parties

as defendants, Horn later amended the complaint to include Moore Oil and Richard Watts

Jr. Trucking, Inc. (Watts Trucking), which had delivered the fuel to Bull River. Horn

later settled his claims against Moore Oil and Watts Trucking and those claims were

dismissed with prejudice on June 7, 2011.

¶17    After learning that Horn had settled his claims against Moore Oil and Watts

Trucking, Bull River sought leave to amend its answer to plead a settled-party defense

under § 27-1-703, MCA (2007). That statute provides that in a negligence action, “a

defendant may assert as a defense that the damages of the claimant were caused in full or

in part by a person with whom the claimant has settled or who the claimant has released

from liability.”   Section 27-1-703(6)(a), MCA (2007).        If the defendant asserts a

settled-party defense, “the trier of fact shall consider the negligence of persons released
                                            6
from liability by the claimant or with whom the claimant has settled.” Section 27-1-

703(6)(b), MCA (2007). The settled party then has the “opportunity to intervene in

the action to defend against claims affirmatively asserted, including the opportunity to

be represented by an attorney, present a defense, participate in discovery,

cross-examine witnesses, and appear as a witness of either party . . . .” Section 27-1-

703(6)(f)(ii), MCA (2007).

¶18    Prior to the statute’s amendment in 1997, we held that § 21-1-703, MCA (1995),

violated the substantive due process rights of plaintiffs and unnamed parties because the

statute allowed apportionment of liability “to parties who are not named in the lawsuit

and who do not have an opportunity to appear and defend themselves . . . .” Plumb v.

Fourth Jud. Dist. Ct., 279 Mont. 363, 379, 927 P.2d 1011, 1021 (1996) (emphasis added).

¶19    Before the District Court, Horn filed a motion in limine to preclude Bull River

from raising a settled-party defense at trial. He argued that § 27-1-703, MCA (2007),

was unconstitutional on the same grounds that this Court invalidated earlier provisions of

the statute in Plumb. The District Court denied Horn’s motion because it determined that

“Bull River ha[d] complied with the statutory requirements” for a settled-party defense

under the new law by amending its answer to plead a non-party defense against settled

and released entities Moore Oil and Watts Trucking. The third-party complaint against

Jerry Amoruso also was settled prior to trial, but Amoruso appeared and defended the

claim at trial, as authorized by § 27-1-703(6)(f)(ii), MCA.


                                             7
¶20    On the final day of trial and just prior to the parties’ closing arguments, Horn’s

counsel joined with Amoruso’s counsel in a M. R. Civ. P. 50 motion for judgment as a

matter of law as to Moore Oil and Watts Trucking. Horn and Amoruso argued that Bull

River had not produced any evidence demonstrating that either of the settled non-parties

was negligent in handling the fuel delivered to Bull River. The District Court denied

their motion and allowed the jury to weigh whatever evidence may have been presented.

¶21    The District Court then turned its attention to the special verdict form. Counsel

for Bull River stated that he had “no problem with this verdict form.” Horn’s counsel,

who had prepared the special verdict form, offered no additional comments or changes to

the form. The special verdict form called upon the jury first to determine whether Bull

River was negligent. If the jury answered “yes” to that question, the jury was to proceed

to the remaining questions on the special verdict form, which in part asked the jury to

determine whether either Moore Oil or Watts Trucking was negligent.          If the jury

answered “no” to the first question, the jury was instructed to sign and date the special

verdict form and call the bailiff. Because the jury answered “no” to the question whether

Bull River was negligent, it returned the special verdict form without considering the

negligence of Moore Oil or Watts Trucking.

¶22    On appeal, Horn argues that § 27-1-703, MCA (2007), is unconstitutional as a

violation of his right to due process of law. Bull River responds by contending that Horn

lacks standing to challenge the constitutionality of the statute because Horn “did not

sustain any loss associated with the settled-party defense.”
                                             8
¶23    The defect we have found in pre-1997 versions of § 27-1-703, MCA, primarily

concerned the jury’s apportionment of fault as between parties and nonparties to the

litigation. Based on the likelihood that juries may assign a disproportionate share of

liability to unrepresented parties, we held in Cusenbary v. Mortensen that “[t]here is no

mechanism provided in § 27-1-703, MCA (1995), by which the negligence of nonparties,

including third party defendants released from liability, can be fairly apportioned by a

jury.” 1999 MT 221, ¶ 60, 296 Mont. 25, 987 P.2d 351.

¶24    Whether application in this case of § 27-1-703, MCA, constituted a similar denial

of due process is not properly before us on this record and in light of the verdict actually

rendered.   Having found no negligence by Bull River, there was no fault to be

apportioned. When the jury found that Bull River was not negligent, its task was finished

as instructed by the special verdict form prepared and proposed by Horn.

¶25    Although Horn argues that Bull River’s introduction of the conduct of the settled

parties allowed it to diminish its own responsibility without sufficient evidence that the

settled parties had contributed to the injury, we fail to discern how the admission of this

evidence materially affected Horn’s substantial rights as required to prevail on a motion

for a new trial. Section 25-11-102, MCA. The verdict form gives no indication whether

the jury might have considered the settled parties to be negligent. Without a finding of

negligence against Bull River, the jury was not asked to determine the negligence of the

settled parties. It is impossible to know whether the jury would have found Moore Oil or

Watts Trucking negligent, or whether it would have apportioned 100% of fault to those
                                             9
settling non-parties, had it found fault by anyone. “[W]e certainly will not speculate”

when the verdict form does not explain the jury’s thought processes. Seltzer v. Morton,

2007 MT 62, ¶ 97, 336 Mont. 225, 154 P.3d 561; Ammondson v. Northwestern Corp.,

2009 MT 331, ¶ 82, 353 Mont. 28, 220 P.3d 1. As noted, Horn’s counsel prepared the

special verdict form. It is well established that “acquiescence in error takes away the

right of objecting to it.” In re A.A., 2005 MT 119, ¶ 26, 327 Mont. 127, 112 P.3d 993

(quoting § 1-3-207, MCA). We will not place the District Court in error “for an action to

which the appealing party acquiesced or actively participated.” In re A.A., ¶ 26.

¶26    When presented with constitutional challenges, we have been guided by the

principle that “[a] court should not decide the constitutionality of a statute if the case can

be decided without reaching the constitutional question.” Kulstad v. Maniaci, 2010 MT

248, ¶ 49, 358 Mont. 230, 244 P.3d 722 (citing Baxter v. State, 2009 MT 449, ¶ 10, 354

Mont. 234, 224 P.3d 1211). We hold that, in light of the special verdict form and the

jury’s finding that the named party defendant was not negligent, Horn cannot

demonstrate prejudice from Bull River’s reliance on the settled-party defense authorized

by § 27-1-703, MCA. As such, we need not address the constitutionality of the statute.

¶27    2. Did the District Court abuse its discretion when it allowed Bull River to

question Pete Horn about his unrelated insurance claims?

¶28    During the fourth day of trial, Horn’s counsel cross-examined Michael Rodrigue,

an independent insurance adjuster for Farmers who assisted Ruth Mikulic with the claims



                                             10
against Bull River, regarding his testimony that Horn did not follow through with his

responsibility to submit documentation supporting his claim:

      Q. You knew the rules of the road when it came to handling insurance
      claims; correct?

      A. Correct.

      Q. Pete Horn had never received the same instructions as a claims adjustor
      as you; correct?

      A. I don’t know that.

      Q. Okay. Pete hadn’t been to any sort of certification or training in
      handling insurance claims to the best of your knowledge.

      A. I don’t know that either.

      Q. All right. So fair to say you didn’t know what sort of experience Pete
      had in terms of submitting claims to insurance companies. Fair?

      A. Fair.

      Q. Okay. And during the course of your involvement in this claim you
      were aware that Pete had likely never handled an insurance claim like this
      one; correct?

      A. Correct.

      Q. In fact, most people hadn’t. Fair?

      A. That’s fair, yeah.

      Q. Mr. Horn did not have experience in handling insurance claims like this
      one to the best of your knowledge; correct?

      A. Correct.




                                           11
¶29      Based on this line of questioning, Bull River’s counsel requested a bench

conference prior to his redirect examination.          Counsel for Bull River informed the

District Court outside the presence of the jury:

         I instructed [Michael Rodrigue] to not say a word about those insurance
         claims even though he was directly asked that. So I would ask for leave of
         the Court to ask Mr. Rodrigue what he knows about the prior insurance
         claims that Mr. Horn has made.

Horn’s counsel responded:

         No. During his deposition I asked him the same questions and you heard
         his testimony. He denied any knowledge of Mr. Horn’s insurance claims. I
         don’t have any knowledge of Pete Horn’s insurance claims. I don’t know
         where we’re going with this. So how am I to learn --

The trial court asked counsel about the source of information regarding Horn’s prior

insurance claims. Bull River’s counsel responded that he did not know because he had

informed Rodrigue that a ruling in limine precluded any such testimony. The court then

ruled:

         Well, we’re not going to be able to get it out of this witness. If you’re
         going to get it out of anybody you’re going to have ask Mr. Horn question
         [sic]. You can cross-examine him . . . [to ask] if he has done this before,
         what his background is, that the Court finds that it would be proper that the
         plaintiff could address that issue. I don’t find that that’s appropriate for this
         witness [Rodrigue], especially given the fact that that was apparently
         unknown to both counsel before we walked through the door here.

(Emphasis added.) Horn’s counsel responded to the court’s decision by saying, “[t]hank

you, Your Honor.”




                                                12
¶30       Bull River recalled Pete Horn during its case-in-chief and proceeded to question

him about a litany of insurance claims he had filed since 1997. Horn’s counsel did not

object.

¶31       Horn asserts that the District Court abused its discretion when it allowed Bull

River to question him about these unrelated insurance claims without any showing that

the claims were relevant to the issue before the jury. Horn contends that he properly

objected to Bull River’s line of questioning. In the alternative, Horn proposes that, even

if he did not properly object, his earlier motion in limine to exclude “any questions

regarding or reference to Horn’s past claims or litigation” preserved his objection for

appeal. Bull River responds that Horn opened the door and failed timely to object to

questions regarding his past insurance claims. Bull River further reasons that Horn’s

motion in limine was not specific enough to preserve an objection because it did not

mention insurance claims.

¶32       We review a district court’s evidentiary rulings to determine not whether this

Court would have made the same ruling, but whether the district court “‘acted arbitrarily

without conscientious judgment or exceeded the bounds of reason’ and prejudiced a

substantial right of the appellant.” Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 39, 362

Mont. 53, 261 P.3d 984 (quoting Seltzer, ¶ 65).

¶33       The law is clear that a motion in limine “may relieve a party of the obligation to

contemporaneously object at trial provid[ed] that the motion is specific and articulates

the grounds for the objection.” State v. Stock, 2011 MT 131, ¶ 45, 361 Mont. 1, 256 P.3d
                                              13
899 (quoting State v. Ankeny, 2010 MT 224, ¶ 39, 358 Mont. 32, 243 P.3d 391)

(emphasis in original). Horn’s unopposed motion requested that “no evidence, testimony,

or reference should be allowed regarding past claims or litigation involving plaintiffs.”

The record indicates that both Horn and Bull River understood that the motion in limine

encompassed Horn’s past insurance claims. Bull River’s counsel told the District Court

that he had specifically instructed Rodrigue “to not say a word about those insurance

claims” because of the “motion in limine,” but urged the court to allow the testimony

because Horn’s questioning had opened the door.

¶34    Assuming Horn’s motion preserved the objection, we have held that a party who

obtains an order in limine may waive his right to rely on that order by acquiescing at trial

to the introduction of the evidence in question. Ankeny, ¶ 48. When the District Court

ruled that Rodrigue could not be questioned regarding Horn’s prior insurance claims but

Horn could be, Horn not only registered no objection, he thanked the court for its ruling.

Horn’s counsel made no objection when the questions later were put to Horn directly.

We hold that, by affirmatively acquiescing to the District Court’s ruling, Horn waived his

right to argue on appeal that his motion in limine prohibited the introduction of his past

insurance claims. Horn is not entitled to a new trial on this ground.

¶35    3. Did the District Court abuse its discretion when it denied Horn’s motion for a

new trial based on Bull River’s insurance-related arguments?

¶36    Horn argues that, throughout the jury trial, Bull River “attempted to confuse the

lines between this case and an insurance bad faith case against Farmers Insurance” in a
                                            14
way that was “prejudicial to Mr. Horn.” Although “[e]vidence of a party’s insured status

is generally inadmissible in Montana,” Gurnsey v. Conklin, 230 Mont. 42, 48, 751 P.2d

151, 154 (1988), the parties agreed to allow such evidence in this case. Horn’s theory of

the case was that Bull River was responsible for the conduct of its agent, Farmers, in

failing to resolve Horn’s claim on “an admitted liability” case.

¶37    Horn made it clear to Farmers at the outset of the claims process that he could not

afford to repair his equipment until Farmers paid his claim. In the Final Pretrial Order,

Horn’s contentions of fact included the claim that “Farmers’ Insurance Exchange, on

behalf of Bull River, has acted unreasonably in the handling of Horn’s claim and has

unreasonably denied the claim and delayed resolution of the claim.” Horn’s contentions

also referenced his complaint against Farmers with the Montana Insurance

Commissioner. He questioned Bull River’s witnesses at trial about the Commissioner’s

actions in response to his complaint. Horn also called as a rebuttal witness Theresa

Oakley, a compliance specialist with the Insurance Commissioner, who testified that

Farmers’ response to Horn’s claim was “beyond unbelievable” and that she would have

been “embarrassed” to have been the adjuster who had handled his claim. Horn argued to

the jury that because Farmers was “Bull River’s agent for the purpose of handling claims

against Bull River and conducting litigation on Bull River’s behalf,” Bull River

ultimately was responsible for the loss of use damages caused by Farmers’ dilatory

handling of Horn’s claim.



                                            15
¶38    Bull River responded to that argument at trial by arguing to the jury that Farmers’

actions in handling the claim did not prove that water contamination occurred due to Bull

River’s negligence. The only statement made by counsel for Bull River to which Horn

specifically objected is the following from Bull River’s opening statement:

       As Mr. Duerk pointed at the beginning [sic], this is in essence a negligence
       case. As you hear the evidence, what we heard through this whole
       demonstration on the screen, folks, it wasn’t a negligence case against Bull
       River Store. It was essentially an insurance bad faith case against Farmers
       Insurance. And Farmers Insurance is not a party. I know I keep saying that
       and you’re going to hear a lot of that, but that’s a fact. In fact, and this is
       something you should know, too, what he’s talking about, all his
       complaints that he was throwing up there on the screen --

At that point, Horn’s counsel interrupted and said: “Your Honor, we are at a point where

this is just argument. He’s categorizing my case. That’s not evidence.” The District

Court did not overrule the objection, but instructed counsel for Bull River to “try staying

with an opening statement that goes to the facts you intend to show.”

¶39    Counsel for Bull River told the jury in his opening statement that “Mr. Horn’s beef

is very clearly against the insurance company here. No dispute about that. And he’s got

the right to bring that in a subsequent case if he so chooses.” Horn did not object to that

statement by Bull River or otherwise interrupt that portion of opposing counsel’s opening

statement.

¶40    Horn argues on appeal that Bull River misled the jury “in an attempt to make it

believe that Mr. Horn could recover all of his claimed damages against Farmers

Insurance.” Horn asserts that “Bull River continued throughout trial to argue, in essence,


                                             16
that Mr. Horn should recover damages from Farmers’ Insurance [sic].”           He fails,

however, to point to any specific objections he made to statements that he now labels as

prejudicial or misleading.    Horn made no objections during Bull River’s closing

argument that the defendant had nothing to do with controlling Farmers’ handling of

Horn’s claim and that “Farmers Insurance is not a party to this case.” Horn fails to

demonstrate how the District Court abused its discretion in allowing such statements in

the absence of any objections and in light of Horn’s own contentions.

¶41   Failure to make a timely objection “constitutes waiver of the right to claim error

on appeal.” In re Bower, 2010 MT 19, ¶ 20, 355 Mont. 108, 225 P.3d 784. In light of the

trial record, we hold that the District Court did not abuse its discretion when it denied

Horn’s motion for a new trial based on Bull River’s insurance-related arguments.

¶42   4. Is Horn entitled to a new trial on the ground of juror misconduct?

¶43   In support of his motion for a new trial, Horn submitted affidavits from two

jurors—Eugene Ronning and Johnny Goodman—as support for his argument that “[he]

was prevented from a fair trial when Juror, Anna Wood brought external information into

the jury room.” Ronning and Goodman were the two jurors who disagreed with the

jury’s finding that Bull River was not negligent. According to Ronning, “Anna Wood

discussed her position as manager of a gas station in Thompson Falls” during jury

deliberations and “discussed the precautions taken at her gas station which prevent water

from getting into the diesel fuel.” Goodman provided a similar statement and further said



                                           17
that Wood’s statements “were made so that the jury would not find Bull River Country

Store Properties negligent” and were “a major factor in the jury’s determination . . . .”

¶44    Horn contends that Wood’s conduct is grounds for a new trial under § 25-11-

102(1), MCA, because it constituted an “irregularity in the proceedings which prevents a

party from having a fair trial.” Horn also complains that because Wood did not disclose

her employment at the gas station on her jury questionnaire, Horn “could not have

expected that she would eventually provide expert testimony on gas station procedures to

the other jurors during deliberations.”

¶45    Bull River responds to those arguments by asserting that Horn’s argument grossly

mischaracterizes the information contained in the Ronning and Goodman affidavits.

Wood did not conduct independent research or bring external information into the jury

room, Bull River contends, but instead merely made permissible statements based on her

personal knowledge. Because the information Wood discussed amounted to an internal

influence and not an external influence, Bull River submits that the use of the Ronning

and Goodman affidavits is improper.

¶46    As a general rule:

       [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 or
       dissent from the verdict or indictment or concerning the juror’s mental
       processes in connection therewith.

M. R. Evid. 606(b). Pertinent here, a juror is permitted to submit an affidavit calling into

question the validity of a verdict if the affidavit concerns “extraneous prejudicial
                                             18
information” improperly brought to the jury’s attention or “outside influence” brought to

bear upon any juror. M. R. Evid. 606(b).

¶47    We have “consistently held that under Rule 606(b), M. R. Evid., the use of juror

affidavits to impeach a jury verdict is limited to showing external influences on the jury.”

Est. of Spicher v. Miller, 260 Mont. 504, 507, 861 P.2d 183, 185 (1993). In other words,

“juror affidavits may not be used to impeach the verdict based upon internal influences

on the jury,” in part because “jurors are expected to bring to the courtroom their own

knowledge and experience to aid in their resolution of the case.” Stebner v. Associated

Materials, Inc., 2010 MT 138, ¶ 16, 356 Mont. 520, 234 P.3d 94 (citing Harry v.

Elderkin, 196 Mont. 1, 8, 637 P.2d 809, 813 (1981) and quoting State v. Kelman, 276

Mont. 253, 262, 915 P.2d 854, 860 (1996), respectively).

¶48    Horn maintains that Wood’s comments during jury deliberations were an external

influence because they present a similar factual situation to the one we analyzed in

Brockie v. Omo, 255 Mont. 495, 844 P.2d 61 (1992). In that case, the plaintiff’s decedent

was killed after the car in which he was riding skidded off the highway and struck a

flasher board stationed on the highway median. Brockie, 255 Mont. at 497, 844 P.2d at

62. The parties disputed whether or not the flasher board complied with a highway safety

standard that “prohibit[ed] storage of a traffic control device within 30 feet” of the

highway. Brockie, 255 Mont. at 497, 844 P.2d at 63. A highway patrol officer testified

that the flasher board was parked “27 feet 2 inches” from the highway and the

defendant’s witness—an accident reconstruction expert—testified that the flasher board
                                            19
was “between 34 and 48 feet” from the highway. Brockie, 255 Mont. at 497, 844 P.2d at

63. A juror later acknowledged that he had engaged in independent research at Carroll

College’s library to clarify the expert’s testimony, which “was at the very heart of the

evidence.” Brockie, 255 Mont. at 500, 844 P.2d at 64. We held that the juror’s actions

amounted to jury misconduct. Brockie, 255 Mont. at 499, 844 P.2d at 64.

¶49   The facts presented in this case are not similar to those in Brockie. Whereas the

juror in Brockie acknowledged engaging in independent research, Horn admits that “it is

unclear whether or not Ms. Wood had existing knowledge of Conoco’s procedures or

whether she researched or reviewed the procedures during trial.”

¶50   The facts before us are more similar to those raised in State v. Hage, 258 Mont.

498, 853 P.2d 1251 (1993). In that case, the defendant argued that he should be given a

new trial because “[a] juror informed the other jurors that he had personal knowledge that

a telephone log was kept of all telephone calls made from the jail.” Hage, 258 Mont. at

507, 853 P.2d at 1256. We held that the juror’s personal knowledge did not fall within

any of the exceptions in Rule 606(b) because personal “knowledge and information

shared from one juror to another or others is not an extraneous influence.” Hage, 258

Mont. at 508-09, 853 P.2d at 1257.

¶51   There is no evidence that Wood ignored the District Court’s repeated admonitions

to the jury to refrain from independent investigation and brought extraneous information

into the jury room. When a motion for a new trial is based on alleged jury misconduct,

we “will not disturb a district court’s decision absent a manifest abuse of discretion,”
                                           20
which is “one that is obvious, evident, or unmistakable.”        Stebner, ¶ 11.     Wood’s

statements were internal influences within the jury deliberations and her statement

reflects precisely the type of personal knowledge and experience that is inadmissible

under M. R. Evid. 606(b). State v. Cooksey, 2012 MT 226, ¶¶ 17-19, ___ Mont. ___, ___

P.3d ___.

¶52    Horn’s complaint that he was “not aware of Ms. Wood’s experience in the gas

station industry prior to interviewing jurors after trial” because Wood did not divulge that

information on her jury questionnaire is unpersuasive. Horn does not advance any legal

theory as to how omitting complete employment information from a jury questionnaire

amounts to juror misconduct. In any event, Horn should have been alerted to Wood’s

relationship with the gas station industry from Wood’s statements on the record during

the trial. During voir dire, Wood answered, “I get fuel from Moore Oil” after Horn’s

counsel asked whether any of the jurors had ever worked for any of the companies

involved in the litigation. Horn’s counsel asked if she had ever had a problem with the

fuel and if she had any concerns about whether “this is the right case” for her to serve.

Receiving negative responses, Horn’s counsel moved on. Wood also asked the District

Court during a trial recess, with counsel for both parties present, whether it was

permissible for her to call Moore Oil during the trial to discuss a recent fuel purchase.

Horn’s counsel said that he had no objection to Wood doing so.

¶53    Although the record does not reflect that Wood ever stated specifically that she

managed a gas station, she did indicate that she was in the business of purchasing fuel
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from Moore Oil, an oil and fuel supplier. It follows that Horn was put on notice as to

Wood’s possible relationship with the fuel industry.

¶54    We hold that, on the record before us, the District Court did not manifestly abuse

its discretion when it denied Horn’s motion for a new trial based on the alleged juror

misconduct. Anna Wood’s statement during jury deliberations regarding the policies in

place at the gas station she managed was an internal influence that is not admissible to

impeach the verdict.

                                     CONCLUSION

¶55    For this Court to reverse the denial of a motion for new trial, the trial court’s

“abuse of discretion must be so significant as to materially affect the substantial rights of

the party asserting error.” Clark v. Bell, 2009 MT 390, ¶ 18, 353 Mont. 331, 220 P.3d

650. Horn has not demonstrated that, applying that standard, the District Court’s denial

of his motion for a new trial amounted to an abuse of discretion. Stebner, ¶ 11. After a

complete review of the record, we conclude that Horn has not shown prejudice to his

substantial rights by virtue of any of the claimed errors properly preserved for appeal.

¶56    The judgment of the District Court is affirmed.



                                                  /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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