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No. 2--01--0059

The plaintiff, Allstate Insurance Company (Allstate), assubrogee of Joseph Buczkiewicz, sued the defendant, Richard Mahr,for property damage resulting when Mahr's car rear-ended the carBuczkiewicz was driving. After a jury found the defendantnegligent and awarded damages of $125, the trial court granted theplaintiff's motion for judgment notwithstanding the verdict(judgment n.o.v.) and increased the damages to $2,855.67. Thedefendant appeals, contending that the court could not grantjudgment n.o.v. because there was conflicting evidence ofliability. The defendant contends that the court in realitygranted an additur, which it could not do without the defendant'sconsent.

Buczkiewicz testified that on November 10, 1999, he wasstopped in traffic on Route 83. Construction had closed the rightlane and three lanes merged into two. After being stopped for afew seconds, his car was rear-ended by one driven by Mahr. Afterthe accident, Mahr apologized, saying that he had been looking tothe right to merge and looked up too late to avoid the accident.

Buczkiewicz identified a repair bill for $2,855.67. He saidthat he paid the $250 deductible and his insurance company,Allstate, paid the rest. His car had not been damaged before theaccident. Nothing happened to it between the accident and when hehad it repaired. Although his car was hit in the rear, the billshowed repairs to the left side panel. That part had been damaged when the bumper was pushed underneath the vehicle and pushed outthe running board.

Mahr testified that on the day of the accident he was in ahurry to get to work. He was driving north on Route 83 and neverchanged lanes. As he crossed the bridge over Irving Park Road,traffic in front of him suddenly came to a halt. He tried to stopbut was unable to do so in time to avoid the accident. Buczkiewiczhad stopped suddenly or was still stopping when the accidentoccurred. Mahr applied his brakes as soon as he saw Buczkiewiczstopping, but his wheels locked up and slid on fresh, oily asphalt.

The jury returned a verdict finding the defendant liable andawarded damages of $125. The plaintiff moved for judgment n.o.v.,arguing that the evidence was undisputed that its damages were$2,855.67, the amount of the repair bill. The trial court grantedthe motion and increased the plaintiff's damages to that amount. The defendant filed a timely notice of appeal.

The defendant contends that the trial court should not havegranted the plaintiff judgment n.o.v.. because the evidencerelating to liability was conflicting. In reality, the courtgranted the plaintiff an additur, which was improper because thedefendant did not consent to that relief.

Based on the practices of the English common law, Americancourts have maintained the distinction that motions for a directedverdict or for judgment n.o.v. are limited to liability issues. Conversely, motions for remittitur or additur are used to contestthe amount of damages. Compare Baltimore & Carolina Line, Inc. v.Redman, 295 U.S. 654, 659-60, 79 L. Ed. 1636, 1639-40, 55 S. Ct.890, 892-93 (1935), with Dimick v. Schiedt, 293 U.S. 474, 482, 79 L.Ed. 603, 609, 55 S. Ct. 296, 299 (1935). See generally Comment,Additur-Procedural Boon or Constitutional Calamity, 17 DePaul L.Rev. 175, 183-85 (1967). The trial court may grant judgment n.o.v.where the evidence so overwhelmingly favors the movant that nocontrary verdict based on that evidence could ever stand. Maple v.Gustafson, 151 Ill. 2d 445, 453 (1992). However, additur may beawarded only where the defendant consents to it as an alternative toa new trial, even where the damages are liquidated or the evidenceof damages is essentially undisputed. Hladish v. Whitman, 192 Ill.App. 3d 561, 565 (1989).

In Hughes v. Bandy, 404 Ill. 74 (1949), the supreme courtdisapproved the procedure followed here of using a motion forjudgment n.o.v. to correct an apparent error in the jury'scalculation of damages. There, the jury found for the plaintiff andawarded him $615. The trial court granted the plaintiff's motionfor judgment of $1,218.25, citing uncontradicted evidence of damagesin that amount. The appellate court reversed and the supreme courtaffirmed the appellate court, stating, as follows:

"A disputed question of fact as to ultimate liability waspresented to the jury, and this question was decided in favorof plaintiff and against defendant. The mere fact that theevidence with respect to damages was not in dispute is besidethe point so far as plaintiff's motion for judgmentnotwithstanding the verdict is concerned." Hughes, 404 Ill. at80.

The court observed that in its previous cases approvingincreases in the damage award the trial courts had done so only withthe defendants' consent as an alternative to granting new trials. Hughes, 404 Ill. at 80-81, citing James v. Morey, 44 Ill. 352(1867), and Carr v. Miner, 42 Ill. 179 (1866). The court furtherheld that, because the plaintiff had not sought a new trial in hispostjudgment motion, he was barred from challenging the jury'sverdict. Hughes, 404 Ill. at 81.

Hughes controls this case. Here, the jury returned a verdictfinding the defendant liable. Needless to say, the plaintiff doesnot contest this finding. The plaintiff contends only that thedamage award was inadequate. Under Hughes, the plaintiff had tofile a motion for a new trial and could have sought additur as analternative remedy. Because the plaintiff did not do so, thedefendant never had the chance to consent to the additur as analternative to submitting to a new trial on damages. Moreover,because the plaintiff never asked the trial court for a new trial,it has waived the right to that relief. 735 ILCS 5/2--1202(e)(West 2000); Hughes, 404 Ill. at 81.

The plaintiff relies on Ross v. Cortes, 95 Ill. App. 3d 772(1981). There, the jury made an error similar to the error thatthe plaintiff alleges occurred here in that the jury awarded theplaintiff only the amount he personally paid. (Here, the juryawarded the plaintiff $125, half of the amount Buczkiewicztestified that he paid as the deductible.) In Ross, however, itappears that the plaintiff did request a new trial. Although theappellate court held that the case was appropriate for additur, itrecognized the need for the defendants' consent. The court thusordered that if the defendants did not file their consent to anadditur within 30 days the cause would be remanded for a new trialon damages. Ross, 95 Ill. App. 3d at 778. Here, the plaintiffnever sought a new trial and has waived the right to that relief.

The judgment of the circuit court of Du Page County isreversed. Judgment is entered on the jury's verdict. See 155 Ill.2d R. 366(a)(5).

Reversed; judgment entered.

HUTCHINSON, P.J., and KAPALA, J., concur.