Ms. Orientale alleged that, while stopped in traffic, her car was struck from behind and propelled into the vehicle in front of it.

The trial court entered partial summary judgment against Mr. Jennings, finding that he was at fault for causing the accident. Ms. Orientale and Mr. Jennings then settled the lawsuit for $100,000, the full amount of liability coverage insuring Mr. Jennings' vehicle.

Ms. Orientale initiated a claim for underinsured motorist ("UIM") benefits with her insurer, Allstate New Jersey Insurance Company; her policy provided coverage for damages up to $250,000.

That matter proceeded to a jury trial on damages. The jury knew nothing about the earlier settlement.

Ms. 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 Ms. Orientale had suffered a permanent injury, it awarded damages in the amount of only $200.

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

Based on the alleged inadequacy of the damages award, Ms. 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 trial 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, Allstate had the option of accepting the additur or rejecting it and proceeding to a new damages trial. Allstate accepted the additur.

Ms. Orientale's UIM coverage came into play only if her damages exceeded the $100,000 she already has received from Mr. Jennings. In light of Allstate's decision, the trial judge again entered a no-cause-of-action judgment in favor of Allstate.

An intermediate appellate court affirmed, refusing to vacate the additur award. The dispute reached the Supreme Court of New Jersey.

The New Jersey Supreme Court's Decision

The court held that "in the unusual case where a damages award was grossly excessive or grossly inadequate, the trial court retains the power to declare that a jury's damages award shocks the conscience and to grant a new trial or offer the parties a remittitur or an additur. Going forward, however, unless both parties consent to a remittitur or an additur, the court must grant a new trial."

Under this new scheme, the court continued, a remittitur and an additur essentially are settlement figures suggested by the trial court. For this approach to work effectively, it added, the trial court "must calculate a remittitur or additur in a way that maximizes the potential that the parties can reach a mutually acceptable settlement." The court observed that that "will not occur if the court sets the figure at the highest or lowest damages award that could be sustained by the evidence."

Moreover, the court continued, when a judge declares that a jury's damages award is so grossly excessive or grossly inadequate "that it shocks the judicial conscience," the jury's appraisal of the evidence leading to an erroneous verdict "should not be entitled to any deference" because when the jury's damages award is "so wrong" that the court must grant either a new trial or, alternatively, a remittitur or an additur, "the court cannot assume that the jury understood its function or the evidence." In fixing the remittitur or additur amount, the trial court must "reach a fair damage verdict on the basis of the evidence it saw and heard."

The court concluded that because the trial court in this case declared that the damages award was so grossly inadequate that it shocked the judicial conscience and because Ms. Orientale did not consent to the court's additur, Ms. Orientale was entitled to a new trial on damages.

The case is Orientale v. Jennings, No. 079953 (N.J. Sept. 23, 2019). Attorneys involved include: Christina Vassiliou Harvey argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Christina Vassiliou Harvey, on the briefs, and Jonathan H. Lomurro, of counsel and on the briefs). Frederic J. Regenye argued the cause for respondent (Law Office of Kenneth N. Lipstein, attorneys; Frederic J. Regenye, on the briefs). Amos Gern 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 argued the cause for amicus curiae New Jersey Defense Association (Methfessel & Werbel, attorneys; William S. Bloom and Leslie A. Koch, of counsel and on the brief, and Natale Donis and James V. Mazewski, on the brief). David R. Kott argued the cause for amicus curiae New Jersey Business & Industry Association (McCarter & English, attorneys; David R. Kott, Edward J. Fanning, and Amanda M. Munsie, of counsel and on the brief). Emily A. Kaller 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, on the brief). Thomas J. Manzo argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; John E. Keefe, Jr., President, of counsel and on the brief, and Thomas J. Manzo, Craig J. Hubert, William H. Mergner, Jr., and Brandon C. Simmons, on the brief).