When a court determines that a jury verdict must be set aside as inadequate, the court may offer the losing party the option of agreeing to an increase in the amount of the award to a sum designated by the court instead of a new trial. This option is called additur.84 A court may invoke additur whenever liability is found, even if the jury awarded no damages at all.84.1 Additur may be appropriate, for example, where it appears from the evidence and the amount of the award that the jury adjusted the award downward due to an improper consideration of the tax consequences.85 The standard is whether or not the amount awarded is so grossly inadequate so as to shock the conscience of the court.85.1
Faced with a motion for additur, the trial court must evaluate the evidence and decide whether the jury award falls within a supportable range. In doing so, the court still defers to the jury and increases the award to the absolute minimum amount that the record requires.85.2 In determining the amount of the additur, the court must grant the losing party every reasonable factual inference and determine what verdict the record justifies as an absolute minimum.86 In deciding whether to grant additur, courts may consider only the facts that were placed into evidence to prove the claim.86.1
Additur may not be granted for unliquidated damages such as pain and suffering or for the assessment of the injury itself.87
Additur is not appropriate where the claim is not insufficiency of the damages, but instead prejudicial conduct during the trial. For example, additur is not appropriate where, upon the basis of the evidence, the court is satisfied that there is a likelihood that the jury’s verdict represents a compromise by some jurors on the issue of liability in exchange for a compromise by other jurors on the amount of damages. In such circumstance, the appropriate remedy is a new trial on both issues.88 Similarly, additur is not appropriate where prejudice results from improper arguments to the jury and the improper introduction of prejudicial evidence.89
84. Rudnick v. Jacobs, 197 A. 381, 383 (Del. 1938); Bejger v. Shreeve, C.A. No. 95C-06-104-RRC, slip op. at 3, Cooch, J. (Del. Super. Apr. 17, 1997) (citing treatise).
84.1. Hall v. Dorsey, C.A. No. 96C-06-045-WTQ, Quillen, J. (Del. Super. Nov. 5, 1998).
85. Newark v. Delmarva Power & Light Co., C.A. No. 83C-JL-10, slip op. at 4, Biffarato, J. (Del. Super. Aug. 29, 1991).
85.1. Moffett v. Carroll, 640 A.2d 169, 176 n.2 (Del. 1994).
85.2. Reid v. Hindt, 976 A.2d 125, 131 (Del. 2009).
86. Bell v. Harmony Mills, L.P., C.A. No. 93C-05-181, slip op. at 1, Carpenter, J. (Del. Super. Jan. 19, 1996); McCartney v. NAB Motel, Inc., C.A. No. 91C-06-075, slip op. at 2, Bifferato, J. (Del. Super. Oct. 28, 1993); Breeding v. Johnston, C.A. No. 91C-02-194, slip op. at 4, Taylor, J. (Del. Super. June 10, 1992).
86.1. Dana Companies, LLC v. Crawford, 35 A.3d 1110, 1113 (Del. 2011); Young v. Frase, 702 A.2d 1234, 1237 (Del. 1997).
87. Porter v. McMillan, C.A. No. 91C-05-133, slip op. at 1, Stiftel, J. (Del. Super. Oct. 19, 1992); Guenveur v. American Policyholders Ins. Co., C.A. No. 81C-JL-l 16, slip op. at 2-3, Stiftel, J. (Del. Super. Sept. 1, 1983).
88. Zaret v. Almart Stores, Inc., C.A. No. 457, slip op. at 2, Walsh, J. (Del. Super. May 26, 1976).
89. Davis v. Maute, 770 A.2d 36, 42 (Del. 2001).
© 2010 David L. Finger