Sullivan, Carton and Halpern. The opinion of the Court was delivered by Sullivan, P.J.A.D. Halpern, J.A.D., (dissenting).
[107 NJSuper Page 496] This appeal in a pedestrian automobile accident case involving an uninsured driver, raises the question whether a proposed additur to a jury verdict fixing damages requires the consent of the Unsatisfied Claim and Judgment Fund in addition to the consent of the uninsured driver-defendant. The trial court held that it could not enter the additur as a judgment without the Fund's consent. We affirm this ruling.
Plaintiff George Jamar, Jr., then age 19, was struck by an automobile operated by defendant Tyrone Hodges, an uninsured driver. Suit was instituted for the infant's injuries by his father as guardian ad litem , who also sued individually for his son's medical expenses and loss of his son's services. The Fund, having received proper notice of the claim, assigned it to an insurer for investigation and defense. N.J.S.A. 39:6-66. Counsel was retained to represent the defendant. N.J.S.A. 39:6-67.
After a plenary jury trial on the issues of liability and damages, the jury returned a verdict in favor of the infant plaintiff for $3,000. The father was awarded $3,000 on his claim. The infant plaintiff thereupon moved to set aside the jury verdict and for an additur , or, in the alternative, for a new trial as to damages only. The court ordered that if defendant would accept an additur of $2,500 for plaintiff George Jamar, Jr., thereby increasing his total recovery to $5,500, judgment would be entered accordingly. The court also determined that if defendant did not accept the additur , the verdict as to both plaintiffs would be set aside as to damages only and a new trial granted on the issue of damages.
Counsel assigned to represent the uninsured defendant reported to the court that the uninsured defendant elected to accept the additur , but that the Fund was unwilling to agree to it. The trial court ruled that it had no authority to order additur in the case over the objection of the Fund and it therefore ordered a new trial as to both plaintiffs limited to the issue of damages.
Plaintiffs filed a notice of appeal from the aforesaid determination and in due course submitted their brief and appendix on appeal. An answering brief was filed in the name of defendant, but actually supporting the position of the Fund. Prior to oral argument the court called counsel's attention to the fact that this was an attempted appeal from an interlocutory ruling taken without leave of court. Plaintiffs then asked the court to grant leave to appeal nunc pro tunc. Since the matter had been fully briefed and was ready for
argument, and since the issue was an important one, this court granted leave and agreed to hear the merits of the appeal.
We are satisfied that under the circumstances here presented the consent of the Fund was a prerequisite to the entry of an additur. Although no order for payment of any judgment out of the Fund has as yet been made, it is not seriously contended that the Fund will not have to pay the amount of any judgment entered in this cause, up to the limits of its liability. It therefore had a sufficient interest in the case, even though not a party thereto as such, to be heard on the question of an additur.
We recognize that defendant in this case, the uninsured driver, did give his consent to the additur. However, such consent cannot be binding on the Fund. Even though defendant will be legally liable for any judgment entered, realistically speaking, the judgment also involves the Fund. The act provides that in any case in which an insurer has assumed the defense of an action, defendant shall cooperate in the defense of such action. N.J.S.A. 39:6-68. It seems fundamental that under these circumstances the Fund should have an equal right to accept or reject the additur. Cf. Fisch v. Manger , 24 N.J. 66 (1957); Moran v. Feitis , 69 N.J. Super. 531 (App. Div. 1961).
It is to be noted that under the act, N.J.S.A. 39:6-72, a settlement of an action against an uninsured motorist requires, inter alia , (1) a confession of judgment by defendant as to the amount agreed upon, (2) approval of the proposed settlement by the trial court, and (3) approval thereof by the manager of the Fund. This is so even though the Fund is not a party to the action.
For the reasons heretofore stated, we hold that the trial court properly determined that it was without authority to order an additur unless the Fund consented to such additur.
Our dissenting colleague holds that the uninsured defendant's consent to the proposed additur should be sufficient to impose the additur ...