Orientale v. Jennings

• Decision Date: 23 September 2019
• Docket Number: A-43 September Term 2017,079953
• Citation: 218 A.3d 806,239 N.J. 569
• Parties: Barbara ORIENTALE, Plaintiff-Appellant, and Michael Orientale, Plaintiff, v. Darrin L. JENNINGS, Defendant, and Allstate New Jersey Insurance Company, Defendant-Respondent.
• Court: New Jersey Supreme Court

239 N.J. 569

218 A.3d 806

Barbara ORIENTALE, Plaintiff-Appellant,

and

Michael Orientale, Plaintiff,

v.Darrin L. JENNINGS, Defendant,andAllstate New Jersey Insurance Company, Defendant-Respondent.

A-43 September Term 2017

079953

Supreme Court of New Jersey.

Argued October 9, 2018

Re-Argued April 24, 2019

Decided September 23, 2019

Christina Vassiliou Harvey, Freehold, argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Christina Vassiliou Harvey, on the briefs, and Jonathan H. Lomurro, Freehold, of counsel and on the briefs).

Frederic J. Regenye, Bayonne, argued the cause for respondent (Law Office of Kenneth N. Lipstein, attorneys; Frederic J. Regenye, on the briefs).

Amos Gern, Roseland, argued the cause for amicus curiae New Jersey Association for Justice (Starr, Gern, Davison & Rubin, attorneys; Amos Gern, of counsel and on the briefs, and Ana Rita Ferreira, on the briefs).

William S. Bloom, Edison, argued the cause for amicus curiae New Jersey Defense Association (Methfessel & Werbel, attorneys; William S. Bloom and Leslie A. Koch, Edison, of counsel and on the brief, and Natale Donis and James V. Mazewski, on the brief).

David R. Kott, Newark, argued the cause for amicus curiae New Jersey Business & Industry Association (McCarter & English, attorneys; David R. Kott, Edward J. Fanning, Newark, and Amanda M. Munsie, Newark, of counsel and on the brief).

Emily A. Kaller, Iselin, argued the cause for amicus curiae Trial Attorneys of New Jersey (Greenbaum, Rowe, Smith & Davis and Trial Attorneys of New Jersey, attorneys; Emily A. Kaller and Michael Ricciardulli, Westfield, on the brief).

Thomas J. Manzo, Lawrenceville, argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; John E. Keefe, Jr., Red Bank, President, of counsel and on the brief, and Thomas J. Manzo, Craig J. Hubert, Lawrenceville, William H. Mergner, Jr., Cedar Knolls, and Brandon C. Simmons, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Under our common law jurisprudence, when a jury's damages award is so grossly excessive that it shocks the judicial conscience, the trial judge may, with the consent of the plaintiff, grant a remittitur -- the highest award that, in the judge's view, could be sustained by the evidence. If the plaintiff accepts the remitted amount, the defendant is bound by that judicial finding, subject to the right to appeal. Likewise, when a jury's damages award is so grossly inadequate that it shocks the judicial conscience, the trial judge may, with the consent of the defendant, grant an additur -- an increased award that, in the judge's view, could be sustained by the evidence. If the defendant accepts the additional amount, the plaintiff is bound by that judicial finding, subject to the right to appeal.

The practice of judges setting damages awards through remittitur and additur -- without the consent of both parties -- has been well established for a long period in this State. That practice, however, was not recognized in the early common law. In the early common law, remittitur did not allow for the reduction of a jury's damages award as permitted today, and additur did not exist.

In the appeal before us, plaintiff has challenged the constitutionality of additur on the basis that the judge acts as a "super jury" in setting a damages award in violation of the right to a jury trial. We take this occasion to reexamine, with the assistance of many stakeholders in the bar and bench, the current practices of both additur and remittitur.

Plaintiff and a number of amici curiae argue that the current practices of remittitur and additur are in tension with the constitutional right to trial by jury. We need not address the constitutional issue before us, however. Instead, we choose to exercise our superintendence over the common law and our constitutional authority over the practices and procedures of our courts to bring the use of remittitur and additur in line with basic notions of fair play and equity. We hold that when a damages award is deemed a miscarriage of justice requiring the grant of a new trial, then the acceptance of a damages award fixed by the judge must be based on the mutual consent of the parties.

Going forward, in those rare instances when a trial judge determines that a damages award is either so grossly excessive or grossly inadequate that the grant of a new damages trial is justified, the judge has the option of setting a remittitur or an additur at an amount that a reasonable jury would award given the evidence in the case. Setting the figure at an amount a reasonable jury would award -- an amount that favors neither side -- is intended to give the competing parties the greatest incentive to reach agreement. If both parties accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury.

We now turn to the facts of this case and the jurisprudence that has led us to our conclusion.

I.

A.

Plaintiff Barbara Orientale brought a personal-injury lawsuit against defendant Darrin Jennings for allegedly setting off a chain-reaction automobile accident that caused her to suffer permanent injuries.

While stopped in traffic, Orientale's car was struck from behind and propelled into the vehicle in front of it. The trial court entered partial summary judgment against Jennings, finding that he was at fault for causing the accident. Orientale and Jennings then settled the lawsuit for $100,000, the full amount of liability coverage insuring Jennings's vehicle.

Orientale maintained an underinsured motorist policy with her insurer, defendant Allstate New Jersey Insurance Company (Allstate), that provided coverage for damages up to $250,000.¹ Orientale initiated a claim against Allstate for her personal-injury damages in excess of $100,000 allegedly caused by the accident. That matter proceeded to a jury trial on damages. The jury knew nothing about the earlier settlement.

Orientale testified that despite undergoing surgery on both her shoulders and receiving nerve-block

injections and physical therapy, she remained in constant pain, suffered limitations in her physical movements, had difficulty sleeping, and struggled to perform routine household chores. Although the jury returned a verdict finding that Orientale suffered a permanent injury, it awarded damages in the amount of only $200.

Because the jury award did not exceed Orientale's $100,000 settlement with Jennings, Allstate's underinsured motorist coverage policy was not triggered. Therefore, the judge entered a no-cause-of-action judgment.

Based on the alleged inadequacy of the damages award, Orientale moved for a new damages trial or, in the alternative, an additur. The trial judge vacated the damages award, finding that it constituted a miscarriage of justice. The judge granted an additur in the amount of $47,500, the lowest award in his estimation that a reasonable jury could have returned in light of the evidence presented at trial.

Under the governing case law, only Allstate had the option of accepting the additur or rejecting it and proceeding to a new damages trial. Allstate accepted the additur. Orientale's underinsured motorist coverage came into play only if her damages exceeded the $100,000 she had already received from Jennings. In light of Allstate's decision, the judge again entered a no-cause-of-action judgment in favor of Allstate.

B.

In an unpublished per curiam opinion, the Appellate Division affirmed the trial court's judgment. It reasoned that additur and remittitur present "mirror images" of remedies designed to correct a damages award constituting a manifest injustice. Because, when applying remittitur, an excessive award should be remitted to the highest amount supported by the evidence, citing Fertile ex rel. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500, 779 A.2d 1078 (2001), the Appellate Division reasoned a similar approach should apply to additur -- the inadequate award should be raised to the lowest amount supported by the evidence. It rejected Orientale's argument that the trial court should have "determin[ed] the amount that a reasonable jury, properly instructed, would have awarded," quoting Tronolone v. Palmer, 224 N.J. Super. 92, 103, 539 A.2d 1224 (App. Div. 1988). In determining that the additur award did "not shock the judicial conscience," the Appellate Division stated that the trial judge not only expressed a "familiarity with the record and ‘feel of the case,’ " but also noted that the jury "found credible [Orientale's] proofs regarding permanency" but less credible her proofs regarding damages. Accordingly, the Appellate Division did not vacate the additur award.

C.

We granted Orientale's petition for certification. 232 N.J. 154, 178 A.3d 1270 (2018). We also granted the motion of the New Jersey Association for Justice (NJAJ) to participate as amicus curiae.

II.

A.

1.

Orientale argues that "additur is constitutionally infirm because it requires the judge to be a super jury in awarding [damages] after the jury's verdict shocked the judicial conscience." Orientale maintains that if an additur is permissible, the trial court erred in fixing the damages award at the lowest amount that a reasonable jury could have awarded, citing Tronolone, 224 N.J. Super. at 103-04, 539 A.2d 1224. She asserts that the court had no basis either to assume that the jury discounted the credibility of some of her witnesses or, given her success in proving liability, to construe the evidence against her. Orientale therefore requests a new jury trial on damages.

2.

Amicus NJAJ encourages this Court to reexamine the constitutionality of additur because it essentially delegates factfindings to the trial judge. NJAJ recommends that, in considering an additur, courts should (1) give the plaintiff "the option of either accepting the additur amount or opting for a new trial on damages"; (2) forgo resolving "factual...