Vermont Mutual Insurance Company, Inc. v. Sondrini Enterprises

Filing 68

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered RE: Plaintiff's 66 Motion for New Trial. For the above-stated reasons,Plaintiff, Vermont Mutual's Motion for a New Trial and/or to Amend the Judgment - (Dkt. No. 66) is DENIED. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
VERMONT MUTUAL INSURANCE
COMPANY, INC.,
Plaintiff,
v.
SONDRINI ENTERPRISES,
Defendant.

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Case No. 3:16-cv-30172-KAR

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR A NEW
TRIAL AND/OR TO AMEND THE JUDGMENT
(Dkt. No. 66)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

This matter is before the court on the plaintiff's, Vermont Mutual Insurance Company,
Inc.'s ("Vermont Mutual" or "Plaintiff"), motion for a new trial and/or to amend the judgment
after a jury returned a verdict in favor of the defendant, Sondrini Enterprises ("Sondrini" or
"Defendant"). Vermont Mutual brought claims for negligence and breach of warranty against
Sondrini as the subrogee of Roger and Pamela Manzolini. The Manzolinis' residence in
Richmond, Massachusetts was destroyed by fire on November 26, 2013. Vermont Mutual
alleged that the fire was caused by Sondrini's faulty installation of a chimney at the Manzolinis'
home. The jury found that Sondrini was negligent and breached the express and implied
warranties to install the chimney in a workmanlike manner and to use reasonable skill in its
construction, but its negligence and warranty breaches were not the proximate cause of the
property damage loss.

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Plaintiff claims that a new trial is required because the jury's answers to the questions on
the verdict form as to each claim were inconsistent with each other and with the verdict for
Defendant. For the reasons that follow, Vermont Mutual's motion is DENIED.
II.

BACKGROUND

A recitation of the pertinent jury instructions and the wording of the verdict form are
necessary to the resolution of Vermont Mutual's motion.
A.

Instructions to the Jury

The court delivered the following instructions on the claims of negligence and breach of
warranty:
1.

Negligence

Plaintiff Vermont Mutual Insurance Company alleges that Defendant Sondrini
Enterprises was negligent when it designed and/or installed the chimney at the
Manzolinis' home. Generally, negligence is the failure to exercise that degree of care
which a reasonable person would exercise in the circumstances.
In order for Plaintiff to prevail on the negligence claim in this case, it must prove
all of the following four elements by a preponderance of the evidence:
First:

Sondrini owed the Manzolinis a duty of reasonable care;

Second:

Sondrini breached its duty of care by not acting reasonably under
the circumstances;

Third:

Injuries or damages are directly related to Sondrini's breach of its
duty of care and would not have occurred but for Sondrini's breach
of its duty of care; and

Fourth:

Roger and Pamela Manzolini suffered injuries or damages.

...
First, Plaintiff must prove that Sondrini owed the Manzolinis a duty of reasonable
care. Here, "reasonable care" means the care that an ordinary, reasonably prudent
contractor would exercise under similar circumstances. . . .
The second element Plaintiff must prove is that Sondrini was negligent; that is,
that Sondrini breached its duty of care by failing to exercise the degree of care that a
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reasonably prudent chimney installation contractor would have exercised under the
circumstances. Plaintiff can prove this element in one of two ways. Plaintiff can show
by a preponderance of the evidence that Sondrini either (1) did something that a
reasonably prudent chimney installation contractor would not do under similar
circumstances; or (2) failed to do something that a reasonably prudent chimney
installation contractor would do under similar circumstances.
...
If you determine that the Plaintiff has proved that Sondrini breached its duty to
the Manzolinis, you must then consider whether the Plaintiff has proved the third
element – causation – by a preponderance of the evidence. Even if the Plaintiff has
proved the other elements by a preponderance of the evidence, you cannot find Sondrini
liable unless there was a causal relation between its negligence and the damages.
To meet its burden to prove causation, the Plaintiff has the burden to show that
Sondrini's negligent conduct was the proximate cause of the Manzolinis' damages. The
Plaintiff is not required to eliminate entirely all possibility that Sondrini's conduct was
not a cause. To meet its burden, the Plaintiff need only show that there was a greater
likelihood or probability that the damages were due to causes for which Sondrini was
responsible than from any other cause.
Sondrini's conduct was the cause of the Manzolinis' damages if the damages
would not have occurred but for Sondrini's negligence. In other words, if the damages
would have happened anyway, Sondrini is not liable. If you find that it is at least equally
probable that the negligence was that of another, including the Manzolinis themselves,
then Sondrini is not liable.
The occurrence of an accident, such as a fire, standing alone, is not always
evidence of negligence. If you find that the precise cause of the fire is left to conjecture
or guesswork and may as reasonably be attributed to a condition for which no liability
attaches as to one for which it does, then you must return a verdict for Sondrini. On the
other hand, the Plaintiff is not required to point out the exact way in which the fire
occurred as long as it showed a greater likelihood that the damages came from an act of
negligence for which Sondrini was responsible.
The fourth element that Plaintiff must prove is that Roger and Pamela Manzolini
suffered injuries or damages. In this case, the parties have agreed that the Manzolinis
suffered injuries or damages so you need not deliberate on that element; you may treat it
as proved by the Plaintiff.
2.

Breach of the Implied Warranty

. . . In order for the Plaintiff to prevail on its breach of implied warranty claim, it
must prove the following elements by a preponderance of the evidence:
First, Sondrini had a duty to install and/or design the chimneys in a workmanlike
manner and to use reasonable skill in its [sic] construction;
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Second, Sondrini failed to install and/or design the chimneys in a workmanlike
manner and to use reasonable skill in its [sic] construction; and
Third, Sondrini's failure to install and/or design the chimneys in a workmanlike
manner and to use reasonable skill in its [sic] construction was a proximate cause of the
Manzolinis' injury or damages. I have previously described the meaning of "proximate
cause" for you.
...
3.
Breach of the Express Warranty
The Plaintiff is also claiming that Sondrini violated an express warranty or
guarantee in the written proposal dated July 18, 2012. The Plaintiff claims that Sondrini
promised to install two new all-fuel chimneys in a workmanlike manner and according to
standard practices. An express warranty is created when a chimney installation
contractor makes any clear or definite promise or statement of fact, either orally or in
writing, about the quality of the work to be performed, and that promise or statement of
fact becomes part of the basis of the bargain between the buyer and the seller.
In order for the Plaintiff to prevail on the breach of express warranty claim, it
must prove the following three elements by a preponderance of the evidence:
First, that Sondrini made a definite promise or statement of fact with respect to
the quality of the work that it would perform; that is, that it would install the chimneys in
a workmanlike manner and according to standard practices. . . .
Second, that Sondrini breached its promise to install the chimneys in a
workmanlike manner and according to standard practices.
Third, that Sondrini's breach of promise was a proximate cause of the Manzolinis'
injury or damages. Again, I have previously defined "proximate cause."
...
(Dkt. No. 59 at 19-23). Plaintiff did not lodge an objection to the explanations of the elements of
the claims either at the charge conference or after the instructions were delivered to the jury.
B.

Verdict Form

During the conference regarding the wording of the proposed verdict form, counsel for
Vermont Mutual objected to separating the questions regarding causation from the questions for
negligence and breach of the implied and express warranties. Instead, she wanted one question
for each claim. Because Sondrini maintained that the chimney installation did not cause the fire,
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Defendant's counsel agreed with the proposed verdict form that posed separate questions for
causation. The verdict form that was submitted to the jury was as follows:
1.

Was defendant Sondrini Enterprises, Inc. negligent?
Yes____
No____
(If yes, go to question #2. If no, go to question #3)

2.

Was the negligence of the Defendant Sondrini Enterprises a proximate cause of
the Plaintiff’s damages?
Yes ____
No _____
(Go to question #3)

3.

Did the defendant Sondrini Enterprises, Inc. breach an implied warranty to
Plaintiff’s insured?
Yes____
No____
(If yes, go to question #4. If no, go to question 5)

4.

Was the breach of an implied warranty of the Defendant Sondrini Enterprises a
proximate cause of the Plaintiff’s damages?
Yes ____
No _____

5.

Did the defendant Sondrini Enterprises, Inc. breach an expressed warranty to
Plaintiff’s insured?
Yes____
No____
(If yes, go to question #6. If no, return your verdict to the court)

6.

Was the breach of an expressed warranty of the Defendant Sondrini Enterprises a
proximate cause of the Plaintiff’s damages?
Yes ____
No _____

7.

Do you award the Plaintiff damages?
Yes ____

No _____

(Dkt. No. 64).
C.

Jury Deliberations and Verdict

The jury began deliberating late in the day on Monday, January 14, 2019, and resumed at
approximately 9:00 A.M. on Tuesday, January 15, 2019 (Dkt. Nos. 53, 60). At 9:30 A.M., the
jury submitted the following two questions to the court: (1) "Can you give a definition of
proximate cause?"; and (2) "In order for any damages to be awarded, do all 7 questions have to

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be answered yes?" (Dkt. Nos. 61, 62). The court first referred the jury to the instruction on
proximate cause in the written instructions that had been submitted to the jury. In response to the
second question, the court answered "no" and reviewed the verdict form indicating that questions
1 and 2 pertained to Plaintiff's negligence claim, questions 3 and 4 pertained to the breach of
implied warranty claim, and questions 5 and 6 pertained to the breach of express warranty claim.
The jury were further instructed that if they answered "yes" to questions 1 and 2, and/or if they
answered "yes" to questions 3 and 4, and/or if they answered "yes" to questions 5 and 6, they
would award damages. On the other hand, if they did not answer "yes" to questions 1 and 2,
and/or if they did not answer "yes" to questions 3 and 4, and/or if they did not answer "yes" to
questions 5 and 6, they would not award damages. Neither party objected to the supplemental
instructions.
At 10:40 A.M., the jury informed the court that it had reached a verdict (Dkt. No. 63). It
answered "yes" to questions 1, 3, and 5 and answered "no" to questions 2, 4, 6, and 7 (Dkt. No.
64). After the jury returned its verdict, the undersigned entered judgment for Sondrini (Dkt. No.
65).
III.

DISCUSSION

A.

Rule 59(a)

Vermont Mutual seeks a new trial under Fed. R. Civ. P. 59(a)(1)(A), which permits the
court, after a jury trial, to grant a new trial "for any reason for which a new trial has heretofore
been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). According to
Vermont Mutual, the jury's findings that Sondrini was negligent (Question No. 1) and breached
the implied and express warranties (Question Nos. 3 & 5) necessarily included findings on all of
the elements of each claim, including causation and, consequently, the separate questions on the

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verdict form regarding causation (Question Nos. 2, 4, 6), to which it objected, were superfluous
and confused the jury. Vermont Mutual goes on to say that it is entitled to a new trial because
the jury's confusion led to an inconsistent verdict and a miscarriage of justice; that is, the jury
failed to award damages to Vermont Mutual notwithstanding its findings that Sondrini was
negligent and breached the warranties. See Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007)
("In the ordinary course, a district court may order a new trial under Federal Rule of Civil
Procedure 59(a) 'only if the verdict is against the law, against the weight of the credible evidence,
or tantamount to a miscarriage of justice.'") (quoting Casillas–Díaz v. Palau, 463 F.3d 77, 81
(1st Cir. 2006)). Sondrini responds by arguing that the verdict form reflected the accurate
descriptions of the law of negligence and breach of warranty that were included in the jury
instructions and demonstrated that the jury performed its function of making factual findings as
to each element of the individual claims. Sondrini has the better argument.
Plaintiff's argument focuses on the verdict form. "A verdict form must be 'reasonably
capable of an interpretation that would allow the jury to address all factual issues essential to
judgment.'" Sheek v. Asia Badger, Inc., 235 F.3d 687, 699 (1st Cir. 2000) (quoting Johnson v.
Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996)). The verdict form is not read in isolation.
Rather, the verdict form and the jury instructions are considered together in order to determine
whether the factual issues were fairly presented to the jury. See Santos v. Posadas De P.R.
Assocs., Inc., 452 F.3d 59, 65 (1st Cir. 2006); Sanchez–Lopez v. Fuentes–Pujols, 375 F.3d 121,
134 (1st Cir. 2004).
1.

The Negligence Claim

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The court's instructions on negligence accurately described Massachusetts law. 1
The elements of a claim of negligence, generally, are (1) negligence, that is, "the failure
of a responsible person, either by omission or by action, to exercise that degree of care,
vigilance and forethought which, in the discharge of the duty then resting on him, the
person of ordinary caution and prudence ought to exercise under the particular
circumstances"; (2) the causal connection between the defendant's negligence and the
plaintiff's injury or damage; and (3) damages.
Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 898–99 (Mass. 2009) (citations and
footnote omitted). See Jupin v. Kask, 849 N.E.2d 829, 834-35 (Mass. 2006) ("To prevail on a
negligence claim, a plaintiff must prove [1] that the defendant owed the plaintiff a duty of
reasonable care, [2] that the defendant breached this duty, [3] that damage resulted, and [4] that
there was a causal relation between the breach of the duty and the damage.").
The jury was instructed on the elements of the negligence claim that Vermont Mutual
was required to prove by a preponderance of the evidence, including negligence and causation,
which are distinct elements under Massachusetts law (Dkt. No. 59 at 19-21). 2 See Barletta
Heavy Div., Inc. v. Layne Christensen Co., Civil Action No. 07-12084-DPW, 2011 WL 1399692,
at *5 (D. Mass. Apr. 13, 2011) ("'Negligence and causation are separate matters.'") (quoting
Roberts v. Southwick, 614 N.E.2d 659, 665 (Mass. 1993) (O'Connor, J., concurring)). "A
positive finding of both is necessary to establish liability." Id. (quoting Kent v. Commonwealth,
771 N.E.2d 770, 776-77 (Mass. 2002)). See also RESTATEMENT (SECOND) OF TORTS § 430
(AM. LAW INST. 1965) ("In order that a negligent actor shall be liable for another's harm, it is

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"Federal courts sitting in diversity apply state substantive law and federal procedural rules."
Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir. 2003).
2

The parties stipulated to the amount of damages to be awarded if the jury found in Plaintiff's
favor.
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necessary not only that the actor's conduct be negligent toward the other, but also that the
negligence of the actor be a legal cause of the other's harm.").
"The jury instructions, to which Plaintiff did not object, reflected the principle that
"[n]egligence actually consists of two elements: a legal duty and an act or omission in violation
of that duty." Donovan, 914 N.E.2d at 898 n.8. In conformance with the law, the jurors were
informed that "[g]enerally, negligence is the failure to exercise that degree of care which a
reasonable person would exercise in the circumstances" (Dkt. No. 59 at 19). After describing
Sondrini's duty, the court instructed that "Plaintiff must prove . . . that Sondrini was negligent;
that is, that Sondrini breached its duty of care by failing to exercise the degree of care that a
reasonably prudent chimney installation contractor would have exercised under the
circumstances" (Dkt. No. 59 at 19). When considered in view of the court's instructions,
Question No. 1 – "Was defendant Sondrini . . . negligent?" – asked the jury to determine whether
Vermont Mutual proved that Sondrini had breached its duty of care to the Manzolinis (Dkt. No.
64).
Having found that Sondrini was negligent, the jury proceeded to Question No. 2
regarding causation (Dkt. No. 64). The court's instruction on causation included the following
explanation:
If you determine that the Plaintiff has proved that Sondrini breached its duty to
the Manzolinis, you must then consider whether the Plaintiff has proved the third
element – causation – by a preponderance of the evidence. Even if the Plaintiff has
proved the other elements by a preponderance of the evidence, you cannot find Sondrini
liable unless there was a causal relation between its negligence and the damages.
To meet its burden to prove causation, the Plaintiff has the burden to show that
Sondrini's negligent conduct was the proximate cause of the Manzolinis' damages.
(Dkt. No. 59 at 20-21) (emphasis added). Question No. 2 reflected the content of the causation
instruction: "Was the negligence of the Defendant Sondrini . . . a proximate cause of the
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Plaintiff's damages?" (Dkt. No. 64). The jury answered "no" to Question No. 2 (Dkt. No. 64).
Because the jury determined that Plaintiff did not prove the requisite element of causation, it did
not award Plaintiff damages on its negligence claim (Dkt. No. 64 [Question No. 7]). See
Wainwright v. Jackson, 195 N.E. 896, 897 (Mass. 1935) ("[O]ne cannot be held liable for
negligent conduct unless it is causally related to injury of the plaintiff.").
The jury was instructed in accordance with the principle in Massachusetts law that in
order to recover damages on its negligence claim, Plaintiff was required to prove, by a
preponderance of the evidence (1) that Sondrini was negligent, and (2) that there was a causal
connection between its negligence and the damages to the Manzolinis' property. Because the
verdict form accurately reflected the law and the jury instructions on those two elements, it was
not confusing and the verdict was not inconsistent. Consequently, Plaintiff has failed to
demonstrate that the jury's verdict on the negligence claim resulted in a miscarriage of justice.
See Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 620-21 (1st Cir. 2015) (where the
plaintiff had to establish a duty, a breach of duty, and "'a sufficient causal nexus'" between the
breach and the harm in order to succeed on its negligence claim, the verdict was not inconsistent
where "[o]n the verdict form, the jury answered 'yes' when asked whether [the defendant] was
negligent and 'no' when queried whether that negligence caused [the plaintiff's injuries].")
(further citation omitted); Correia, 354 F.3d at 54-56 (same); Barletta Heavy Div., Inc., 2011
WL 1399692, at *5 ("The fact that the jury [in answers to special questions] found negligence
without causation does not demonstrate that the finding was against the weight of the evidence or
a miscarriage of justice.").
2.

The Breach of the Implied and Express Warranty Claims

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Plaintiff's arguments regarding the claims of breach of the implied and express warranties
fail for the same reasons. Plaintiff agreed with the jury instructions on the breach of the implied
or express warranties. "In the absence of a contemporaneous objection, the instruction[s]
became the law of the case." Correia, 354 F.3d at 56 (citing Milone v. Moceri Family, Inc., 847
F.2d 35, 38-39 (1st Cir. 1988)). The verdict form, when read in conjunction with the jury
instructions, directed the jury to first consider whether there was an implied or express warranty
and a breach of the warranty (Question Nos. 3 and 5) before considering the separate element of
proximate causation (Question Nos. 4 and 6) (Dkt. No. 59 at 21-23; Dkt. No. 64). See Sharp v.
Hylas Yachts, LLC, 872 F.3d 31, 46-47 (1st Cir. 2017); Jennett v. Colo. Fuel & Iron Corp., 398
N.E.2d 755, 757 (Mass. App. Ct. 1980). Consistent with its findings on the negligence count, the
jury determined that Plaintiff proved that Sondrini breached the implied and express warranties
when it installed the chimneys, but failed to prove causation (Dkt. No. 64).
The cause of the fire was the central issue in the case. "Application of the legal cause
standard to the circumstances of a particular case is a function ordinarily performed by, and
peculiarly within the competence of, the factfinder." Swift v. United States, 866 F.2d 507, 510
(1st Cir. 1989). There was evidence from which the jury could have determined that Sondrini's
design and installation of the chimneys was faulty, but that Plaintiff failed to sustain its burden of
proving that the chimney design and installation caused the fire. The jury instructions and the
verdict form supplied the jury with the tools to make those factual determinations. See SanchezLopez, 375 F.3d at 134 ("To determine whether the [factual] issues were fairly presented to the
jury, [courts] examine the . . . instructions and the wording of the verdict form as a whole.").
Accordingly, Plaintiff's motion for a new trial is denied.
B.

Fed. R. Civ. P. 49(b)(3)

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In the alternative, Vermont Mutual presents a variation on the same theme. Relying on
Fed. R. Civ. P. 49(b)(3), it asks the court to amend the judgment by awarding it the amount of
damages to which the parties had stipulated because the jury's verdict for Sondrini was
inconsistent with its findings that Sondrini was negligent and breached the implied and expressed
warranties (Dkt. No. 66 at 2, 7).
Vermont Mutual has forfeited its argument.
The special questions here were propounded pursuant to Fed. R. Civ. P. 49(b). When the
verdict was returned, [Plaintiff] did not raise a claim of inconsistency before the court
discharged the jury. In that situation, failure to object to an alleged inconsistency while
the jury is still in the box forfeits a party's objection, subject only to the possibility of
relief for plain error.
Correia, 354 F.3d at 56–57 (citing Peckham v. Cont'l. Cas. Ins. Co., 895 F.2d 830, 836 (1st Cir.
1990); McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)).
Even if Vermont Mutual had not forfeited the Rule 49(b) argument, it could not succeed.
"[T]he Supreme Court has instructed that '[w]here there is a view of the case that makes the
jury's answers to special interrogatories consistent, they must be resolved that way.'" Correia,
354 F.3d at 57 (quoting Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364
(1962)). For the reasons discussed earlier, there was a version of the facts that supported the
jury's findings. Accordingly, Vermont Mutual's Rule 49(b) claim fails.
IV.

CONCLUSION

For the above-stated reasons, Vermont Mutual's Motion for a New Trial and/or to Amend
the Judgment (Dkt. No. 66) is denied.
It is so ordered.
Dated: May 15, 2019

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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