Miller v. Chicago Ins. Co.

• Citation: 320 So.2d 134
• Decision Date: 01 October 1975
• Docket Number: No. 55987,55987
• Parties: Maurice Fred MILLER et al. v. CHICAGO INSURANCE COMPANY et al.
• Court: Supreme Court of Louisiana

Page 134

320 So.2d 134

Maurice Fred MILLER et al. v. CHICAGO INSURANCE COMPANY et al.

No. 55987.

Supreme Court of Louisiana.

Oct. 1, 1975.

April 30, 1975.

Rehearing Denied Oct. 31, 1975.

Edward C. Abell, Jr., Davidson, Meaux, Onebane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendants-applicants.

Homer Ed Barousse, Jr., Edwards, Stefanski & Barousse, Crowley, for plaintiffs-respondents.

DIXON, Justice.

This is a personal injury action filed by the plaintiff, Maurice Fred Miller, individually and on behalf of the minor, Mamie Rene Miller. The injury complained of occurred in an automobile accident on August 19, 1972. The defendant insurance company admitted liability and the issue of quantum was tried before a jury. The jury awarded plaintiff a judgment in the amount of $21,000 for general damages. The day after this judgment the plaintiff filed a motion requesting that the trial judge order an additur to raise the judgment to the sum of $50,000, or, alternatively, order a new trial. After a hearing on this motion the judge ordered an additur of $20,000, or, if the defendant refused to accept this, a new trial. The defendant then filed a document styled 'Acceptance of Additur Under Protest,' stating that the defendant accepted the additur of $20,000 but did so 'under protest and with full reservation of their rights to appeal or answer in any appeal . . .' The defendant appealed to the Third Circuit Court of Appeal and plaintiff answered the appeal. The issues presented to that court concerned the propriety of the actions of the trial judge in this case and the scope of appellate review. Miller et al. v. Chicago Insurance Co., La.App., 306 So.2d 355 (1975). This court granted writs of certiorari because of the apparent conflict of the opinion in this case with a previous opinion of the Second Circuit on the issue of the proper interpretation of C.C.P. 1813 (Parks v. Liberty Mutual Insurance Co., 291 So.2d 505 (La.App.2d Cir. 1974)), and because of the apparent conflict of this case with a previous opinion of the First Circuit concerning the proper method of review of judgments which are based on an additur or remittitur (Sukker v. Newsom, 264 So.2d 228 (La.App.1st Cir. 1972)).

Before discussing these conflicting opinions of the circuit courts a broader problem presented by this case must be considered. The question is whether the issue of the proper amount of damages to be awarded in this case is properly before this court. The solution to this problem depends on whether the 'acceptance' of the additur or remittitur by the affected parties constitutes a waiver of their right to raise this issue on appeal. Can a party, who has been ordered to accept a change in the judgment of the jury, or face a new trial, accept the benefit of the change in judgment which allowed him to avoid the order of a new trial, and then appeal that change in judgment? We think that under the facts of this case, the defendant is precluded from appealing the issue of quantum after accepting the additur imposed by the trial judge in lieu of a new trial. ¹

The Louisiana Code of Civil Procedure provides for both additur and remittitur of judgments in cases tried before a jury. As in the federal system, ² and other state systems, this procedure is connected with the procedures concerning new trials. In Louisiana the trial judge has great discretion in ordering or denying new trials. ³ Moreover, an order granting or denying a new trial is not appealable, but is reviewable under the appellate courts' supervisory jurisdiction for abuse of discretion. ⁴ However, it is only when the trial jduge is of the opinion that a new trial should be ordered because the verdict is excessive or inadequate that remittitur or additur is available as a means of avoiding a new trial.

C.C.P. 1813 provides:

'If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, if may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.'

The redactors comments under this article indicate that the idea of additur and remittitur had grown up as a matter of practice without statutory authority. The system of additur and remittitur chosen was one recommended by Arthur Vanderbilt in Minimum Standards of Judicial Administration (New York University, 1949). Vanderbilt was interested in streamlined, efficient procedures for judicial administration. The purpose of the statutory authority for additur and remittitur was to avoid new trials and promote judicial efficiency. This is confirmed by McMahon in his article on the Code of Civil Procedure, 21 La.L.Rev. 1, at 35 (1960).

The Louisiana statutory scheme requires the consent of the party adversely affected by an additur or remittitur. The party is offered an opportunity, when asked by the trial judge, to agree to a change in the judgment, thereby avoiding the expense and delay of a new trial. The order of an additur or remittitur is therefore contingent; if the party does not agree to the change, he elects to submit to a new trial. Therefore, in consenting to the additur or remittitur, a party in effect agrees to promote judicial efficiency by binding himself to a fixed quantum. It would be inconsistent with the purpose of the system to allow the consenting party to raise the quantum issue on appeal, should the consenting party appeal.

At common law, the well established rule was that the party who accepted the remittitur ⁵ was bound by his election and could not thereafter raise the issue of the correctness of the quantum award. This was so even if the other party appealed the amended award seeking a further change in the judgment. ⁶

Our research has uncovered only one jurisdiction which allows the procedure followed by the defendant in this case. The federal Fifth Circuit Court of Appeals has held that if the plaintiff accepts the remittitur under protest he can appeal the issue of quantum to the appellate court. Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (5th Cir. 1966).

The Seventh Circuit has expressly refused to follow this rule. Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); Casko v. Elgin, Joliet and Eastern Ry. Co., 361 F.2d 748 (7th Cir. 1966). The Second Circuit has also followed the traditional rule. Mattox v. News Syndicate Co., 176 F.2d 897 (2d Cir. 1949). Several state courts have recently re-examined the traditional common law rule and have either rejected the right to raise the issue on appeal or have amended the rule as noted below. ⁷ None of the jurisdictions examined in our research has decided to follow the Fifth Circuit rule. ⁸

The recent re-examination of the principle that the accepting party is bound by his election and cannot thereafter raise the quantum issue on appeal has been prompted by a decision of the Wisconsin Supreme Court which allowed the remitting party to raise the issue of quantum when the other party appealed the verdict. Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963). In Plesko, the plaintiff sued for personal injuries and was awarded $9,950 by the trial jury. The trial judge issued an order for a new trial unless plaintiff accepted a remittitur reducing the judgment to $5,500. The Wisconsin Supreme Court had previously announced that it would follow the general common law rule forbidding the accepting party to raise this issue on appeal. Burmek v. Miller Brewing Co., 12 Wis.2d 405, 107 N.W.2d 583 (1961). In Plesko the defendant appealed after the plaintiff had accepted the remittitur. The court held that when the opposing party appealed the case the plaintiff would be allowed to raise the issue of the propriety of the judge's action in ordering the remittitur. The court stated the following:

'The reasons motivating the majority to adopt the foregoing rule are these: The objective underlying the recommended procedure for granting an option to accept judgment for a reduced amount of damages in lieu of having a new trial, where the damages awarded by the jury are determined by the trial court to be excessive, is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party's accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court's determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal. Furthermore, the new rule herein announced may to some extent discourage appeals by the party held liable because of the possibility that the party who has accepted judgment for the reduced damages may prevail on his motion for review and have the jury's verdict reinstated.' (120 N.W.2d 130, at 135).

Several jurisdictions have decided to follow the Plesko rule since that decision. Schliessman v. Anderson, 31 A.D.2d 367, 298 N.Y.S.2d 646 (1969); Mulkerin v. Somerset Tire Service, Inc., 110 N.J.Super. 173, 264 A.2d 748 (1970); Jangula v. Klocek, 170 N.W.2d 587 (Minn.1969); Templeton Feed & Grain v. Ralston Purina Co., 69...