October 15, 2019
Relying upon the common law, New Jersey courts have long utilized additur (adding to a jury’s excessively low damages award) and remittitur (reducing a jury’s excessively high damages award) when the trial judge concluded that there had been a miscarriage of justice, and that the verdict’s award amount could not reasonably be sustained by the evidence. The doctrine of additur provides that when a jury’s damage award is so grossly inadequate that it shocks the judicial conscience, the trial judge may, with the consent of the defendant, grant an “additur” to the verdict that would, in the judge’s view, be sustainable by the evidence. Conversely, the doctrine of remittitur would permit the trial court to, with the consent of the plaintiff, reduce a jury verdict that was so excessive as to shock the judicial conscience. New Jersey courts had adopted the practice, however, of applying additur or remittitur without the consent of the other parties.
In Barbara Orientale v. Darrin L. Jennings, (Decided September 23, 2019), the New Jersey Supreme Court held that, where a damages award is deemed a miscarriage of justice requiring the grant of a new trial, then the acceptance of a new damages award must be based on the mutual consent of the parties. This is a clear change in the law, which previously permitted a trial judge to simply fix the new damages amount, subject to the right of appeal. If both parties now accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury.
Plaintiff Barbara Orientale sued the defendant because he started a chain-reaction automobile accident that lead to her vehicle being struck from behind, causing injuries. The trial court granted partial summary judgment finding that the defendant caused the accident. Defendant’s insurer then settled for $100,000, the full amount of the liability insurance policy. Since Plaintiff had underinsured coverage, she sued her insurer for damages in excess of the $100,000 she had already received. The jury found a permanent injury but only awarded $200. Therefore, her underinsured coverage was not triggered because the award did not exceed $100,000.
Ms. Orientale moved for a new damages trial, or additur. The trial court granted additur in the amount of $47,500. Based on the law at the time, Plaintiff’s insurer accepted the additur amount. Again, her underinsured coverage was not triggered because the award did not exceed $100,000. The New Jersey Supreme Court took the opportunity to revise the application of additur and remittitur in order to create a more level playing field between the parties. Since Ms. Orientale did not consent to the additur, she was entitled to a new damages trial. Going forward, both parties must consent to the additur or remittitur.
For further information, contact Joe Gallo in our Florham Park office at (973) 822-1110.