218 A.3d 806
N.J.2019Background
- Barbara Orientale sued Darrin Jennings for permanent injuries from a car accident; Jennings was found at fault and settled with Orientale for $100,000 (his policy limits).
- Orientale had underinsured-motorist coverage with Allstate (up to $250,000) and sued Allstate for damages exceeding $100,000; liability had already been resolved.
- A jury found permanency but awarded only $200 in damages; because the award did not exceed the $100,000 settlement, Allstate’s coverage was not triggered and the judge entered no cause.
- Orientale moved for a new damages trial or an additur; the trial judge vacated the $200 award as a miscarriage of justice and set an additur of $47,500 (the judge’s view of the lowest reasonable award).
- Allstate accepted the additur, the trial court again entered no cause, and the Appellate Division affirmed; Orientale appealed to the New Jersey Supreme Court.
- The Supreme Court held that when a jury award shocks the conscience, the judge may offer a remittitur or additur but the acceptance must be by mutual consent; if either party refuses, the court must grant a new trial, and the judge should set the figure at what a reasonable jury would award (not the extreme highest/lowest supported amounts). Orientale, having not consented, is entitled to a new damages trial.
Issues
| Issue | Orientale's Argument | Allstate's Argument | Held |
|---|---|---|---|
| Whether additur (judge increasing damages) impermissibly makes judge a "super-jury" | Additur violates the jury right because judge is effectively re‑weighing facts and imposing damages without plaintiff’s consent | Longstanding state practice is constitutional; judges may correct manifestly inadequate awards | Court avoided deciding constitutional question; reformed practice by superintendence — judges may offer additur but cannot impose it without mutual consent |
| Whether a remittitur/additur may be imposed with consent of only one party | Orientale: plaintiff should not be forced to accept judicially fixed award; consent must be mutual | Appellee: current law permits only one side to accept and thereby avoid a new trial | Held: acceptance requires mutual consent of both parties; absent mutual consent, a new trial must be granted |
| How the court should select the remittitur/additur amount (highest/lowest sustainable vs reasonable jury amount) | Trial court erred by fixing the lowest amount; court shouldn’t assume jury discredited her evidence | Trial court followed prior precedent setting additur at lowest amount sustainable by evidence | Held: court must attempt to set the amount a reasonable jury, properly instructed, would have awarded (neutral figure favoring settlement) rather than the extreme highest/lowest amounts |
| Remedy in this case given Orientale did not consent to additur | Orientale seeks a new damages trial | Allstate accepted additur so argues judgment proper | Held: Orientale did not consent; she is entitled to a new trial on damages; matter remanded |
Key Cases Cited
- Dimick v. Schiedt, 293 U.S. 474 (U.S. 1935) (federal decision striking down additur under Seventh Amendment while upholding remittitur based on long usage)
- Fisch v. Manger, 24 N.J. 66 (N.J. 1957) (New Jersey upheld additur/remittitur practices under State Constitution when fairly invoked)
- Cuevas v. Wentworth Group, 226 N.J. 480 (N.J. 2016) (cautioning that remittitur must be used with great restraint and showing deference to jury awards)
- Fertile ex rel. Fertile v. St. Michael’s Med. Ctr., 169 N.J. 481 (N.J. 2001) (discussion of remittitur set at highest amount sustainable by evidence)
- Tronolone v. Palmer, 224 N.J. Super. 92 (App. Div. 1988) (advocated setting additur/remittitur at the amount a reasonable jury would award)
- Esposito v. Lazar, 2 N.J. 257 (N.J. 1949) (noting appellate review of trial court discretion in remittitur/additur)