BARBARA ORIENTALE VS. DARRIN L. JENNINGSÂ (L-3476-12, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0879-14T1
BARBARA ORIENTALE, and
MICHAEL ORIENTALE,
Plaintiffs-Appellants,
v.
DARRIN L. JENNINGS,
Defendant,
and
ALLSTATE NEW JERSEY
INSURANCE COMPANY,
Defendant-Respondent.
________________________________________________________________
Argued September 20, 2016 – Decided July 25, 2017
Before Judges Messano, Espinosa and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-3476-12.
Jonathan H. Lomurro argued the cause for
appellants (Lomurro, Munson, Comer, Brown &
Schottland, LLC, attorneys; Mr. Lomurro, of
counsel and on the briefs; Christina Vassiliou
Harvey, on the briefs).
Kenneth N. Lipstein argued the cause for
respondent.
PER CURIAM
Plaintiffs appeal from an order that awarded them additur in
lieu of a new trial, challenging the amount of the award. We
affirm.
I.
Following a motor vehicle accident, plaintiff Barbara
Orientale1 settled with the negligent driver for $100,000, the
policy limit of his insurance policy. She then filed suit against
her own insurer, defendant Allstate New Jersey Insurance Company,
under the underinsured motorist provision of her policy to obtain
further recovery for her injuries and for her husband's loss of
consortium claim.
Following a damages only trial, the jury found plaintiff had
suffered a permanent injury and awarded her $200 in damages. The
jury awarded no money on the loss of consortium claim. In light
of the $100,000 recovery from the tortfeasor, the verdict was
molded to a "No Cause for action."
1
Our references to "plaintiff" are to Barbara Orientale.
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Plaintiffs filed a motion "for a new trial on the value of
plaintiff's injuries"2 and at oral argument, agreed that their
request was, in the alternative, for additur.
The trial judge found the $200 award constituted a miscarriage
of justice and that, pursuant to Rule 4:49-1(a), additur was
appropriate.3 He determined [t]he lowest verdict that a reasonable
jury could have reached based on the proofs in this case" was
$47,500, and therefore added $47,300 to the jury award of $200.
Because the amount did not exceed the $100,000 obtained from the
tortfeasor and the order was entered as a "No Cause for action."
In this appeal, plaintiffs argue the trial court applied the
wrong standard for additur and erred in the analysis used to
determine the additur amount. Plaintiffs argue further that this
court should either make its own additur award based upon the
comparable verdicts supplied to the trial judge or remand for a
new trial on damages in front of a different judge. Plaintiffs
contend the trial judge erred in basing the additur amount "upon
2
Plaintiffs' motion did not articulate any grounds for a new
trial regarding the loss of consortium claim and the trial judge
noted he "[did not] consider the application for a new trial or
additur to address consortium." Plaintiffs did not contend
otherwise.
3
Defendant consented to the additur award granted by the trial
judge and did not cross-appeal. Accordingly, it has presented no
argument on appeal regarding liability, the jury's finding as to
permanency or the trial judge's decision that the $200 jury verdict
should be set aside.
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the lowest value that a reasonable jury could find." Citing
Tronolone v. Palmer, 224 N.J. Super. 92, 103 (App. Div. 1988),
they argue the trial court was required to "attempt the difficult
task of determining the amount that a reasonable jury, properly
instructed, would have awarded." Plaintiffs argue that, in
selecting the lowest amount a jury would find, the trial judge
failed to adhere to this standard; the trial judge erred in
weighing the evidence; and the amount of the additur had no basis
in any of the cases reviewed by the trial court.
After reviewing these arguments in light of the record and
applicable legal principles, we conclude that plaintiffs'
challenge to the additur award lacks merit and, therefore, their
remaining arguments are moot.
II.
"Additur and remittitur are legitimate mechanisms justified
by the desirability of avoiding the expense and delay of a new
trial" when the amount of a damages verdict constitutes a manifest
injustice that may be corrected without disturbing a liability
verdict. Id. at 97-98. Because they present mirror images of
remedies designed to cure the same ill – a damages verdict that
constitutes a manifest injustice – the principles applicable to a
court's review of an excessive verdict for purposes of remittitur
also apply to the review of "a shockingly low damage verdict."
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Id. at 98. In Cuevas v. Wentworth Grp., 226 N.J. 480 (2016), the
Supreme Court described the fundamental principles governing
remittitur. As applied to additur, those principles are:
[A] jury verdict is presumed to be correct and
entitled to substantial deference, that the
trial record underlying a [additur] motion
must be viewed in the light most favorable to
the [defendant], and that the judge does not
sit as a decisive juror and should not
overturn a damages award falling within a wide
acceptable range — a range that accounts for
the fact that different juries might return
very different awards even in the same case.
[Id. at 486.]
A.
In Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500
(2001), the Court approved the approach taken by the trial judge
here within the context of a remittitur award, stating:
Because the process of remittitur is
essentially to "lop-off" excess verdict
amounts, and not to substitute the court's
weighing and balancing for that of the jury,
remitting the award to the highest figure that
could be supported by the evidence is the most
analytically solid approach.
The Court observed, "commentators have concluded that such
an approach tampers least with the intentions of the jurors, who
by implication wanted to fully compensate the plaintiffs." Ibid.
(citation and internal quotation marks omitted); see also Jastram
ex rel. Jastram v. Kruse, 197 N.J. 216, 228 (2008) (noting the
court's role "in assessing a jury verdict for excessiveness is to
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assure that compensatory damages awarded to a plaintiff encompass
no more than the amount that will make the plaintiff whole"
(citation and internal quotation marks omitted)). Applying these
principles to the determination of an additur award, the award
should be "the [lowest] figure that could be supported by the
evidence." Fertile, supra, 169 N.J. at 500. Whether additur or
remittitur, the goal is to bring the award within the "broad range
of acceptable outcomes." Cuevas, supra, 226 N.J. at 508.
Thus, the standard applied by the trial judge – that he should
determine the "the lowest verdict that a reasonable jury could
have reached based on the proof in this case" – was correct.
B.
At the time the motion was decided, the judge was guided by
our Supreme Court's decision in He v. Miller, 207 N.J. 230, 258-
59 (2011), which held that a trial judge could – and, arguably,
should – rely on the judge's personal knowledge of verdicts from
private practice and "comparable" verdicts submitted by the
parties to a remittitur motion. In keeping with that holding, the
trial judge afforded the parties an opportunity to provide
comparable verdicts and referred to those verdicts in setting
forth the reasons for the amount of the additur award.
In Cuevas, supra, 226 N.J. at 486, which was decided after
the motion was decided here, the Court noted and did not alter the
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"fundamental principles governing remittitur jurisprudence"
articulated in He and described above. However, the Court
concluded that the method endorsed in He to implement those
principles was "not sound in principle or workable in practice."
Ibid. The Court specifically disapproved reliance upon the trial
"judge's personal knowledge of" other verdicts and "the
comparative-verdict methodology that allows parties to present
supposedly comparable verdicts based on case summaries." Ibid.
The Court directed trial courts to "focus their attention on
the record of the case at issue." Id. at 505. The Court
acknowledged "different juries and judges may have different views
on the issue of adequate compensation for pain and suffering --
all reasonable and falling within a broad range of acceptable
outcomes." Id. at 508. Although we apply the same standard for
reviewing the damages award as the trial court, we "must pay some
deference to a trial judge's 'feel of the case.'" Id. at 501
(quoting Johnson v. Scaccetti, 192 N.J. 256, 282 (2007)).
The trial judge here recited each of the "comparable" verdicts
presented to him by counsel. However, he noted the "wide
divergence" in the results "suggests that predicting what a jury
might do in any particular case is a fool's errand," because of
the differences in each case, lawyer, jury, judge, county and
year. It is evident from the transcript that the judge did not
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reach his conclusion as to the appropriate amount of the additur
award by relying upon the methodology rejected by the Supreme
Court in Cuevas.
In his decision, the trial judge first reviewed the evidence
regarding plaintiff's injuries and the impact on her life, noting
the following:
At the time of the accident, plaintiff was forty-five years
old with a life expectancy of 34.7 years. She had a thirteen-year
old daughter and a ten-year-old son. Because her husband was
permanently disabled and unable to work, she was the only income
earner. She continued to work at the job she had before the
accident, a delicatessen clerk in a supermarket, and was "able to
ameliorate the physicality of the job through the assistance of
her [fellow] employees." She bore the responsibility for "the
bulk of the family functions" and, despite "constant and
unremitting pain," she "continue[d] to vacuum, clean, move
furniture when required, maintain the yard, [and] do the laundry."
Her ability to participate in her children's activities, such as
attending their events, "was severely compromised . . . because
she [could not] sit for a long period."
The trial judge described plaintiff's pain as "constant and
unremitting," "sometimes of an extreme nature," often requiring
her to sleep in a recliner. He noted that she continued with pain
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management therapy as a result. The trial judge also reviewed the
medical testimony and noted the jury's finding that plaintiff
suffered a permanent injury reflected its assessment that the
medical testimony she proffered was credible.
The trial judge provided reasons why he determined "any
additur awarded will be on the lower edge of the [c]ourt's
discretion," which included the following:
Ms. Orientale through necessity has continued
to work through all the pain and discomfort,
she is not bedridden. The jury may have
weighed this factor heavily.
[T]he reviewing court must assume that the
jury found the credibility of some of
plaintiff's witnesses low, particularly the
day to day [e]ffects of Ms. Orientale's life.
At another point in his decision, the trial judge commented
on the jury's failure to award any damages to plaintiff's husband
on the loss of consortium claim: "A jury had every right to
conclude that his testimony on that claim was overstated or
inflated or less than credible," and that there could be a
spillover effect when the jury discounted the credibility of one
witness in assessing other witnesses. He concluded,
Considering this court's feel of the
case[,] . . . the lowest verdict that a
reasonable jury could have reached based on
the proofs in this case, in consideration of
the cases cited above in New Jersey is
$47,500. That is to say, the jury has already
awarded $200, I'm adding $47,300.
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We are satisfied that, despite the trial judge's reference
to the "comparable" verdicts supplied to him, the award he chose
was anchored in his familiarity with the record and "feel of the
case." In his approach, he acknowledged the presumption of
correctness due the jury verdict. In reviewing the evidence, he
noted the jury had found credible plaintiffs' proofs regarding
permanency and also cited reasons why the jury may have found less
credible the testimony of other witnesses. The resulting award
does not shock the judicial conscience. See Cuevas, supra, 226
N.J. at 485.
Giving appropriate deference to the trial judge's feel of the
case, we discern no grounds for disturbing the additur award here.
Affirmed.
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