DA 12
- 0017 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 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 Cou

nty 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 October 30 20122 Submitted on Briefs: August 8, 2012 Decided: October 30, 2012 Filed:

_________________________________ _________ Clerk3

Justice Beth Baker delivered the Opinion of the Court. ¶1 After a five
- day trial in October 2011, aS anders County j ury decidedthat Appellee Bull Riv

er Country Store Properties, LLC , (Bull River) was not negligent in connection with the pl aintiffs’ claim that it sold water - contaminated diesel fuel
. Appellant s 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 t o a new trial becauseB ull 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 i nsurance claims ? ¶5 3. Did the District Court abus e 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 BAC KGROUND**  ¶7 Pete Hornf

iled suit against Bull River and other f ictitious defendants on January 6, 2010. Horn alleged that hepurchased forty
- two gallons of water
- contaminated diesel fuel at the Bull River store in Noxon, Montana in late February and early Mar ch of 2008. Horn allegedl y transported that fuel in five
- and
- six gallon jugs to h is work site in Grand Coulee, Washington , where he used heavy machinery to engage in landscaping work on land owned by his son, Jason Horn. I n mid
- M arch 2008, Pete Horn usedt he4

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 P ete 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 em

ployee informed Horn that the gas station had received multiple complaintsr egard ing recently
- sold diesel fuel and invited Horn to call Bull River’s owners, Robertand Carol Page. Horn called Carol Page, who toldHorn to contact Bull Ri ver’s insurance company, Farmer s Insurance Exchange (Farmers ). ¶9 Upon learn ing from other customersth at there was a problem with its diesel fuel, Bull River immediately shut down the diesel fuel pumps and called itsd iesel 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 Riv er 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 a

nd replaced the diesel fuel. ¶10 Horn formally reported a claim t o Farmersf

or 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 reso lving elev en other claims ag ainst Bull River, all of which involved allegations that diesel fuel purchased at the g as station in late February or early March damaged the eng ines of various vehicles5

and pieces of machinery. All elev en of those other claimss ettled without problem after those claimants submitted documentsto Farmersevidencin g their repair costs
. ¶11 Farmersu ltimately tendered to Horn $16,042, but wasunable to resolve Horn’s remaining claimsf

or damage to his machinery. Horn filed suit against Bull River on January 6, 2010, claiming loss of u se damages for

b oth mac hines during a 1,320
- day period that began on March 10, 2008 , a nd ended on the final day of the trial. The parties stipulated that a reasonable rental rate for machines similar to H orn’swas $400 per day for each machine. I

n total, Horns ought damages from Bull River in excess of o ne million dollars. H orn arg ued that Farmers, as the ag ent of Bull River, inadequately investigated the damage to his equipment and delayed payment of hi s claim
. Since he did not hav e 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 c ontaminat ionto fuel obtained from its store andthat if he did purchase contaminated fuel there, his injuries, if any,
were caused by others, including Horn’s mechanic and Horn himself for run ning the damaged engines until they burned up. Bull Riv er also argued to the jury that Horn had fa iled to prove any negligence by Bull River or the Pages
. ¶13 Atthe conclusion of trial , ten jurors agreed that Bull River was not negligent and the jury returned a defense verdict
. Horn f iled a motion for a new trial on November 21, 2011, which the D istrict Courtdenied on December 14, 2011 . Horn appeals
.6 **STANDARD OF REVIEW** ¶14 “ Our standard of rev iew 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, 35 6 Mont. 520, 234 P.3d 94. As such, the standards of rev iew 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
. I

s 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’so riginal 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. ( WattsTrucking ) , which had deliveredthe fuel to Bull River
. Horn later settled hisc laims against Moore Oil and WattsTrucking and those claims were dismissed with p rejudice on June 7, 2011. ¶17 After learning that Hornh ad settled hisc laims against Moore Oil and Watts Trucking, Bull River sought leave to amend its answer to plead a settled
- party defense under § 27
- 1
- 703, M CA ( 2007 )
. That statute provides that in a negl igence 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.” S ection 27
- 1
- 703(6)(a), MCA (2007). If th e defendant asserts a settled
-party defense, 

### “the trier of fact shall consider the negligence of persons released7



### from liability by the claimant or with whom the claimant has settled.” Section 27
- 1
- 703(6)(b), MCA (2007). T he settled party then has the “o pportunity 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 substant ive 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. Fourt h Jud. Dist. Ct
. , 279 Mont. 363, 379, 927 P.2d 1011, 1021 (1996) (emphasis added)
. ¶19 Before the District Court, H orn filedamotion in limine to preclude Bu ll River from raising a s ettled
-party defense at trial. He arg ued that § 27
- 1
- 703, MCA (2007) , was unconstitutional on the same grounds that this Court invalidated earlier provisions of th e 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 entit iesM oore 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.8

¶20 On the final day of trial and just prior to the parties’ closing arguments , Horn’s counsel j oined with Amoruso’s counsel ina M. R. Civ. P. 50 motion for j udgment as a matter of law as to Moore Oil and WattsTrucking
. H orn and Amoruso arg ued that Bull River had not produced any evidence demonstr ating that either of the settled non
- parties
wasn eg ligent in handling the fuel delivered to Bull River. The District Court denied their motion and allowedthe jury to weigh whatever evidence may hav e been presented
. ¶21 The D istrict Court then turned its att ention to the special verdict form
. Counsel for Bull Riv

er stated that he had “no problem with this verdict form.” H orn’s counsel, who had prepared the special verdictf orm, offered no additional comments or changes to the form . The special verdict form c alled 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 questionso n the special verdict form, which in part asked the jury to determine whether

e ithe r Moore Oil or Watts Trucking wasn eg ligent
. I f the jury answered “no” to the first question, the jury was instructed to sig n and date the special verdict form and call the bailiff. Because the jury answered “no” to the question whether Bull River was ne gligent, it returned the special verdict formw ithout considering the negligence of Moore Oil or Watts Trucking
. ¶22 On appeal, Horn argues that§ 2 7
- 1
- 703 , MCA ( 2007) , i s unconstitutional as a violation of hisrig

ht to due process of law
. Bull River respondsby contending that Horn lacks standing

t o challenge the constitutionality of thestatute because Horn“ did not sustain any loss associated with the settled
- party defense.”9

¶23 The defect we hav e found in pre - 1997 v

ersions of

§ 2 7
- 1
- 703, MCA , primarily
concern ed the jury’s apportionment of f ault as between parties and non parties to the litigation
. Based on the likelihood that juries ma y 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 thi s case of § 27
- 1
- 703, MCA , constituted a similar denial of due process is not properly before us on this record andin light of the verdict actually rendered. Havin g found no negligence by Bull River, there was no fault to be apportioned. When the jury f ound 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 ow n responsibility without sufficient evidence that the settled parties had contributed to the injury, we fail to discern how the admission of this
ev idence materially affectedH orn’s substantial rights as required to prevail on a motion for a new trial. Se ction25
- 11
- 102, MCA. The v erdict 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 p arties. It is impossible to know whether the jury would have found Moore Oil or Watts Trucking neg

ligent, or whether it would hav e apportioned 100% of fault to those10

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 pr epared the spe cial verdict form. I

t 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 ac tion to which the appealing party acquiesced or actively participated.” In re A.A. , ¶ 26. ¶26 When presented with constitutional challenges, we hav e been gu ided 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 , Hornc annot 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 thest atute. ¶27 2. D id 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 - examin edM ichael Rodrigue, an independent insurance adjuster for Farmers who assisted Ruth Mikulic with the claims11

ag ainst Bull River, regarding h ist estimony that Horn did not follow through with his responsibility to submit documentation supporting his claim : Q. Y ou knew the rules of the road when it came to hand ling 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. O kay. 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.12

¶29 Based on this line of questioning, Bull River’s counsel requested a bench conference prior to his redirect examination. C ounsel 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 c laims 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 c laims. 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]. Y ou can cros s - 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.”13

¶30 Bull River recalled Pete Horn during its case - in
- chief and proceededto question him about a litany of

insurance claimshe had f iled since 1997. Horn’s counsel did not object. ¶31 Horn assertsthat the District Court abused its discretion when it allowed Bull River to question him

about these unrelatedinsurance claims without any showing that th e claims were relevantt o the issue before the jury
. Horn contends that he p roperly objected to Bull River’s line of questioning. In the alternative , Horn proposes that , ev en if he d id not properly object, his earl ier motion in limine to exclude“ any questions reg arding or reference to Horn’s past claims or lit igation”p reserved his o bjection for appeal. Bull River respondsthat Horn opened the door and failed timely to object to questions regarding hisp ast insurance claims. B ull River further reasonsthat Horn’s motion in limine wasn ot specific enough to preserve an objection because it didn ot mention insurance claims. ¶32 We rev

iew a district court’ s evidentiary ruling st o 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 motionin limine“ mayr elieve a party of the oblig ation to contemporaneously object at trial provid[ed] t hat the motion is specific and articulates the grounds for the objection .” State v. Stock, 2 011 MT 131, ¶ 45, 361 Mont. 1, 256 P.3d14

899 (quoting State v. Ankeny, 2010 MT 224, ¶ 39, 358 Mont. 32, 243 P.3d 391) (emphasis in original). Horn’sunopposed motion requested that “no evidence, testimony,
or reference should be allowed regarding past clai ms or litigation involving plaintiffs.” The record indicates that both H orn and Bull River understood that the motion in limine encompassed Horn’s past insurance claims . Bull Riv er’s counsel told the District Court thath e had specifically instructed Rodrigue “to not say a word about those insurance claims” because of the “ motion in limine , ” b ut 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 w ho obtains an order

in limine may waive his right to rely onthat order by acquiescing at trial to the introduction of the evidence in question. Ankeny , ¶ 48. When the District Court ruled thatRodrigue could not be questioned regarding Horn’s prior in surance claims but Horn could be , Horn not only registered no objection, he thanked the courtf or its ruling
. Horn’s counsel made no objection when the questions later were put to Horn directly. We hold that, b y affirmatively acquiescing to the District Court’s ruling, Horn waived his right to arg

ue 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 deni ed Horn’s motion for a new trial based on Bull River’s insurance

- related arguments? ¶36 Horn arguesthat , throug hout the jury trial , Bull River “attempted to confuse the lines between this case and an insurance bad faith case ag ainst Farmers Insurance” in a15

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 thatB ull River was responsible for the conduct o f its ag ent, Farmers, in fa iling 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. I n the F inal P retrial 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
unrea sonably denied the claim and delayed resolution of the claim.” Horn ’s contentions also referenced his complaint against Farmers with the Montana Insurance Commissioner
. H e questioned Bull River’s witnesses at trial about the Commissioner’s actions in response to his complaint. H orn 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 “embarrasse d” 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 ag ainst 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.16

¶38 Bull River responded to that argument at trial by arguing to the jury that Farmer s ’ actionsin handling the claim did not prove that water contamination occurreddue to Bull River’s neg

ligence
. The only statement made by counsel for Bull River to which Horn specifically object edis the following from Bull Rive r’s opening statement : As Mr. Duerk pointed at the beginning [sic] , this is in essence a negligence case. As you hear the ev idence, what we heard through this whole demonstration on the screen, f olks, it wasn ’ t a neg

ligence c ase against Bull River Store. It was essentially an insurance bad faith c ase 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 somethin g you should know, too, what he’ s talking about, all his complaints that he was throwing up there on the screen
-- At that point, H orn’s counsel interrupted and said: “Your Honor, we are at a point where this is just arg

ument. He ’ s categorizing m y case. That ’ s not ev

idence.” The District Court did not overrule the objection, butinstruct edc ounsel 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 hisopening 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.” Horndid not object to that statement by Bull River or otherwise interrupt that portion of opposing counsel’s opening statement
. ¶40 Horn argueso n appea l that Bull River misledthe jury “ in an attempt to make it believe that Mr. Horn could recover all of his claimed damages ag ainst Farmers Insurance.” Horn assertsthat “Bull River continued throughout trial to argue, in essence,17

that Mr. Horn should recover damages from Farmers’ Insurance [sic]
. ” He fails , ho wever, to point to any specific objection s he made to statementsthat henow label sas prejudicial or misleading
. H orn made no objections during Bull River’s closing arg ument 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.” H orn fail st o demonstrate how the District Court abused itsdiscretion in allowing such statementsin the absence of any objectionsand in light of Horn’s own contentions. ¶41 Failure to make atimely 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 itsd iscretion when it denied Horn’smot ion for a new trial based on Bull River ’sinsurance
- 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 submitteda ffidavits from two jurors

—Eug

ene Ronning and Johnny Goodman
—as support for hisarg ument that “ [he]
was prev ented from a fair trial w

hen Juror, Anna Woodbrought external information into the jury roo m.” Ronning and Goodman were the two jurors who disagreed with the jury’s finding that Bull River was not neglig ent. 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 said18

that Wood’s statements “were made so that the jury would not find Bull Riv er Country Store Properties negligent” and were “a major factor in the jury’s determination . . . .” ¶44 Horn contendst

hat Wood’s conduct

i s grounds for a new trial under § 25
- 11
- 102(1), MCA, because itconstituted an “irregularity in the proceedings which prevents a party from having a fair trial.” Horn also complainsthat because Wood did not disclose her employment at the ga s station onh er 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 argumentg

rossly mischaracteriz e sthe 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 madepermissible statements based on her personal knowledge. B ecause the information Wood discussed amounted to an internal influenceand not an external influence , Bull Riv er submits that the use of the Ronning and Goodman affidavits is improper
. ¶46 Asa g

eneral rule: [ A] juror may not testify asto any matter or statement occurrin g 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, ajuror is permitted to submit an affidavit calling into question the validity of a verdict if the affi davit concerns“ extraneous prejudicial19

information ” improperly brought to the jury ’ s attention or “ outside influence ” brought to bear upon any juror. M. R. Evid. 606(b). ¶47 We hav

e “ consistently held that under Rule 606(b), M. R. Ev id., the use of juror affidavits to impeach a jury verdict is limited to showing extern al influences on the jury.” Est. of Spicher v. Miller , 260 Mont. 504, 507, 861 P.2d 183, 18 5 (1993). In other words, “juror a ffidavits 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 Hornmaintain sthat Wood’s comments during jury deliberationswere an external influence because they

p resent 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 boardcomplied 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 o fficer 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 board20

was “between 34 and 48 feet ” from the highway. Brockie , 255 Mont
. at 497, 844 P.2d at 63. A juror later acknowledg ed that he had eng

ag ed in independent researchat Carroll College ’sl ibrary

t o clarify the expert ’s testimony, which“ was at the very heart of the
ev idence.” Brockie , 255 Mont
. at 500, 844 P.2d at 64
. We held tha t 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 . W hereas the juror in Brockie acknowledged engaging in independent research , Horn admitsthat “it is unclear whether or not Ms. Wood had existing knowledge of Conoco’s procedures or whether she researched or revie wed 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 12 51 (1993). In that case, thedefendant 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) becausep ersonal “ knowledge and information shared from one juror to another or others is not an extraneous influence.” Hage , 258 Mon t. 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 investigationand brought extraneous information into the jury room
. W

hen 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,”21

which is “one that is obvious, ev ident, or unmistakable.” Stebner, ¶ 11. Wood’s statements were internal influences within the jury d eliberations and her statement reflects precisely the type of p ersonal k

nowledge and experiencethat is inadmissible under M. R. Evid. 606(b). State v. Cooksey , 20 12 MT 226 , ¶ ¶ 17
- 19, _

__ Mont. _

__, _

_ _ P.3d _

_ _. ¶52 Horn’sc omplaint 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 doesnot adv ance any leg

al theory as to how omitting complete empl oyment information from aj ury questionnaire amounts to juror

m isconduct. I

n any ev ent, Hornshould have been alerted to Wood’s relationship with the gas station industry from Wood’s statements on the record during the trial. During voird

ire , Wood answe red , “ I get fuel from Moore Oil” af ter 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 ev er had a problem with the fuel and if she had any concerns about w hether “this is the rig

ht case” for her to serv

e. Receiving neg

ative responses, Horn’s counsel mo ved on. Wood also asked the District Court d uring a trial recess , withc ounsel for both partiesp resent, 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 indicatet hat she was in the business of purchasing fuel22

from Moore Oil, an oil and fuelsupplier
. I t follows that Horn was put on notice as to Wood’spossiblerelationship with the fuel industry. ¶54 We hold that, on the record before us, the District Court did not manifestly abuse it sd iscretionw

hen it denied Horn’smotion for a new trial based on the alleged juror misconduct. A

nna Wood’s statement during jury deliberations reg arding the policies in place at the g

as station she managed was aninternal influencethat is not admissible to impeach the verdict. **CONCLUSION** ¶55 For this Court to reverse the denial of a motion for new trial, the trial c ourt’s “abuse of discretion must be so significant as to materially affect the substantial rights of the party asserting error.” Clark v. Be ll , 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 reco rd, 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 Courtis affirmed.

/S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ JAME S C. NELSON /S/ BRIAN MORRIS23

/S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE