Fill and Sign the Jury Instruction Waiver Form

3.1 Fraud (With Defense Of Waiver) In this case the Plaintiff claims that the Defendant committed a fraud - - that the Defendant made certain allegedly false and fraudulent misrepresentations [and/or omissions] to the Plaintiff. The term "fraud" is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity; made for the purpose of inducing the other person to act; and upon which the other person does in fact rely with resulting injury or damage. [Fraud may also include an omission or intentional failure to state material facts, knowledge of which would be necessary to make other statements by the Defendant not misleading to the Plaintiff.] In this instance the alleged misrepresentations [and/or omissions] that the Plaintiff claims to have been fraudulently made by the Defendant are as follows: [Here enumerate the specific misrepresentations and/or omissions claimed to have been fraudulently made.] Each of these alleged misrepresentations [and/or omissions] should be considered and judged separately in accordance with the instructions that follow. It is not necessary that the Plaintiff prove all of them in order to recover. To prevail on this claim of fraud, therefore, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Defendant made one or more of those alleged misrepresentations [or omissions]; Second: That the misrepresentation [or omission] related to a material existing fact; Third: That the Defendant knew or should have known at the misrepresentation was false [or that the omission made other statements materially misleading]; Fourth: That the Defendant intended to induce the Plaintiff to rely and act upon the misrepresentation [or omission]; and Fifth: That the Plaintiff [”reasonably”] [”justifiably”] relied upon the misrepresentation [or omission] and suffered injury or damage as a result. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] To make a "misrepresentation" simply means to state as a fact something that is false or untrue. [To make a material "omission" is to omit or withhold the statement of a fact, knowledge of which is necessary to make other statements not misleading.] To constitute fraud, a misrepresentation must not only be false [or an omission must make other statements misleading], it must also be "material" in the sense that it relates to a matter of some importance or significance rather than a minor or trivial detail. To constitute fraud, a misrepresentation [or omission] must also relate to an "existing fact." Ordinarily, a promise to do something in the future does not relate to an existing fact and cannot be the basis of a claim for fraud unless the person who made the promise did so without any present intent to perform it or with a positive intent not to perform it. Similarly, a mere expression of opinion does not relate to an existing fact and cannot be the basis of a claim of fraud unless the person stating the opinion has exclusive or superior knowledge of existing facts that are inconsistent with such opinion. To constitute fraud the Plaintiff must also prove that the Defendant made the misrepresentation [or omission] knowingly and intentionally, not as a result of mistake or accident. It must be proved that the Defendant either knew or should have known of the falsity of the misrepresentation [or the false effect of the omission], or that the Defendant made the misrepresentation [or omission] in negligent disregard of its truth or falsity. Finally, to constitute fraud the Plaintiff must prove that the Defendant intended for the Plaintiff to rely upon the misrepresentation [and/or omission]; that the Plaintiff did in fact rely upon the misrepresentation [and/or omission]; and that the Plaintiff suffered injury or damage as a result of the fraud. Alabama Law. [When it is shown that the Defendant made a material misrepresentation [and/or omission] with the intention that the Plaintiff rely upon it, the Plaintiff must prove that reliance upon the representation [and/or omission] was “reasonable.” In deciding whether the Plaintiff’s reliance upon the alleged misrepresentation was reasonable you should consider all of the circumstances surrounding the transaction between the parties including the mental capacity, educational background, relative sophistication, and bargaining power of the parties.] Florida Law. [When it is shown that the Defendant made a material misrepresentation [and/or omission] with the intention that the Plaintiff rely upon it, then, under the law, the Plaintiff may rely upon the truth of the representation even though its falsity could have been discovered had the Plaintiff made an investigation, unless the Plaintiff knows the representation to be false or its falsity is obvious.] Georgia Law. [When it is shown that the Defendant made a material misrepresentation [and/or omission] with the intention that the Plaintiff rely upon it, the Plaintiff must prove that reliance upon the misrepresentation [and/or omission] was justified. If, in the exercise of reasonable care and due diligence for the protection of one's own interests, the Plaintiff could have learned the truth of the matter by making a reasonable inquiry or investigation under the circumstances presented, but failed to do so, then it cannot be said that the Plaintiff "justifiably" relied upon such misrepresentations [and/or omissions].] Return to General Charge For injury or damage to be the result of fraud, it must be shown that, except for the fraud, the injury or damage would not have occurred. [Now, if you find that the Plaintiff has failed to prove the claim of fraud under these instructions, then, of course, your verdict will be for the Defendant. On the other hand, if you find for the Plaintiff, you must then consider the Defendant's defense to this claim; namely, the defense of waiver as to which the Defendant has the burden of proof by a preponderance of the evidence. It is a general rule of law that if one is induced by misrepresentations or fraud to enter into a contract, and thereafter, at a time when the defrauded person has discovered or reasonably should have discovered the nature of the deception, such person receives from the party guilty of the fraud some substantial concession or enters into a new and more favorable contract in respect to the transaction, the defrauded person thereby waives and gives up any right to recover damages as a result of the original misrepresentations.] If you find for the Plaintiff on the claim of fraud, [and against the Defendant on the defense to that claim,] you will then consider the issue of the amount of money damages to be awarded to the Plaintiff. In that respect you should award the Plaintiff an amount of money shown by a preponderance of the evidence to be fair and adequate compensation for such loss or damage as resulted from the fraud. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: [State or enumerate the elements of recoverable damages] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice or reckless indifference to the rights of others, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 3.1 Fraud (With Defense Of Waiver) SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant made one or more of those alleged misrepresentations [or omissions]? Answer Yes or No 2. That the misrepresentation [or omission] related to a material existing fact? Answer Yes or No 3. That the Defendant knew or should have known that the misrepresentation was false [or that the omission made other statements materially misleading]? Answer Yes or No 4. That the Defendant intended to induce the Plaintiff to rely and act upon the misrepresentation [or omission]? Answer Yes or No 5. That the Plaintiff [”reasonably”] [”justifiably”] relied upon the misrepresentation [or omission] and suffered injury or damage as a result? Answer Yes or No [Note: If you answered No to any of the preceding Questions you need not answer any Questions following or coming after the Question to which you gave No as the answer.] 6. That the Plaintiff waived [his] [her] claim of fraud against the Defendant by entering into a new contract with the Defendant in respect to the transaction at a time when the Plaintiff had discovered, or reasonably should have discovered, the nature of the alleged deception? Answer Yes or No [Note: If you answered Yes to the preceding Question you need not answer the remaining question.] 7. That the Plaintiff should be awarded the following damages: [State or enumerate the elements of recoverable damages] SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS As shown by the choices given in the body of this instruction, the law of the three states of the Eleventh Circuit appears to differ with respect to a fraud victim’s duty to investigate or exercise due diligence before relying upon a representation that later proves false. With respect to Alabama law, see Foremost Insurance Company v. Parham, 693 So.2d 409 (Ala. 1997). With respect to Florida law, see Gold v. Perry, 456 So.2d 1197 (Fla. App. 4th Dist. 1984). With respect to Georgia law, see Simmons v. Pilkenton, 230 Ga. App. 900, 497 S.E.2d 613 (Ga. App. 1998).