DAVID A. VANALSTYNE, Jr. vs. RICHARD WHALEN.

ROSE, J. We encounter this case for the second time. [Note 1] Here the plaintiff appeals from an order denying his motion for a new trial and from the judgment entered after the defendant consented to an additur to the jury's verdict. See Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). The circumstances in which VanAlstyne sustained the injuries here sued upon are described fully in VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 341-343

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(1983). In brief, VanAlstyne was playfully running beside or clinging to Whalen's accelerating automobile. At some point he fell away from the car and sustained serious injuries on impact with the roadway. At the first trial the jury returned a $50,000 verdict for the plaintiff, which was to be reduced by thirty-five percent by virtue of the jury's finding that VanAlstyne had also been negligent.

Shortly after the first judgment entered it was learned that VanAlstyne suffered from epilepsy. He moved for relief from judgment and for a new trial on the basis of newly discovered evidence. Mass.R.Civ.P. 60(b) (2), 365 Mass. 828 (1974). His motions were allowed as to a new trial on the issue of damages.

At issue in the second trial were the quantum of damages and whether the defendant's negligence proximately caused VanAlstyne's epilepsy. [Note 2] At trial, the defendant contended that the plaintiff's epilepsy could have been hereditary or could have developed as a result of other illnesses. The second jury returned with an amount of $27,500 (far slimmer than the first jury award). Thereupon, VanAlstyne moved for a third trial, again limited to the damages issue. The trial judge ruled that the motion would be allowed unless Whalen accepted an additur that increased the jury's award to a fixed sum "neither . . . increased by any sum representing interest or costs nor . . . reduced by the percentage representing the plaintiff's comparative negligence." The defendant agreed to the additur, which corresponded exactly to the limit of his insurance policy ($50,000), of which figure the judge had been apprised in connection with a G. L. c. 93A claim in the case.

VanAlstyne's three arguments on appeal are that the additur was too low, that the case was not one in which the use of an additur was appropriate, and that in setting the additur the judge impermissibly considered the limit of the defendant's insurance coverage. Following oral argument we remanded the case to the Superior Court and requested supplementary

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information relating to the calculation of the additur. The trial judge's commendably candid response provided support for the plaintiff's latter two arguments. [Note 3] We are therefore obliged to reverse.

1. In setting the additur, the judge "discounted evidence of epilepsy since [he] felt it was entirely appropriate for the jury to decide that such condition was not proximately caused by the [defendant's] negligence." This finding of fact usurped the jury's function of resolving the contested causation issue. See Moran v. Feitis, 69 N.J. Super. 531, 539-541 (1961). Because the damages sought in this case were unliquidated, compare Bass v. Peterson, 168 Va. 273, 276 (1937), the judge could not draw inferences from the amount of the verdict as to how the jury had decided the causation issue. Therefore, he could not conclude that "the verdict [was] sound except for [the] inadequacy of the amount." Freeman v. Wood, 379 Mass. 777, 785 (1980). Compare Barbieri v. Taylor, 37 Conn. Supp. 1, 5-6 (Super. Ct. 1980).

Here, for example, the jury could have found that the defendant's negligence proximately caused the plaintiff's epilepsy but proceeded to assess damages in accidental or deliberate disregard of the judge's instructions. Alternatively, the verdict could have resulted from other defects in the work of the jury that rendered an additur inappropriate. Freeman v. Wood, 379 Mass. at 785-786. If the jury has acted improperly neither the plaintiff nor the defendant has "had a jury trial as contemplated by the constitutional guaranty." Kaiser v. Cannon, 529 S.W.2d 235, 244 (Tenn. App. 1975). An additur may not be granted "in cases in which the verdict has failed to decide issues upon which the parties were entitled to a trial by jury, as distinguished from damages arising out of said issues." Moran v. Feitis, 69 N.J. Super. at 540. See Genzel v. Halvorson, 248 Minn. 527, 529 (1957).

In cases in which it cannot be said with certainty in which way a verdict resolved issues of liability or causation, or in

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which an unduly slim award raised the possibility of other jury misconduct, see, e.g., Peterson v. Rawalt, 95 Colo. 368, 372 (1934), the proper practice is to order an unconditional new trial on all unresolved issues. See Smith & Zobel, Rules Practice Section 59.4, at 445 (1977 & Supp. 1985); 6A Moore's Federal Practice par. 59.08[7], at 59-204 (2d ed. 1984). [Note 4]

2. The judge acknowledged after remand that in calculating the additur he had somewhat in mind the limit of Whalen's insurance policy but used that figure only to round off the additur into a fixed sum that "would be accepted by the defendant," thus avoiding the need for a third trial. Although the goal of avoiding a third trial is nearly always admirable, the means used here to attain that goal fell short of the law's requirement that only the plaintiff's injuries be taken into account in setting an award. See Shore v. Shore, 385 Mass. 529, 530-531 (1982), and cases cited. In so holding we do not intimate that a judge's knowledge of the existence and limit of an insurance policy is per se an occasion of reversible error. It was in giving any weight to this fact in determining the amount of an additur that the judge erred. See, e.g., State v. Burton, 20 Ariz. App. 491, 496 (1973) (improper to consider an offer of judgment in setting an additur).

In accordance with the foregoing, the judgment is reversed. The case is remanded to the Superior Court for a new trial on damages.

So ordered.