(concurring specialty)-
I join in the court’s opinion, but arrive at a new trial on damages by a little different route.
The trial court has found the defendant insurance agency negligently misrepresented the insurance coverage for the snowmobile, and, therefore, the agency is liable to Roger Runia, operator of the snowmobile, for the loss he sustained by reason of the misrepresentation. This loss is measured by the amount of money Roger Runia has to pay his injured snowmobile passenger, Beth Becker Runia.
Ordinarily, Roger Runia’s loss would be measured by the amount of damages adjudicated against Roger and in favor of claimant Beth Becker Runia. This appears to be either $56,000 or $250,000. In the bench trial, the insurance agency’s position was that the $250,000 judgment must be set aside because the result of an invalid additur, and, therefore, it could only be liable for $56,000.
In my view the issue is not whether the insurance agency is “bound” by the judgment in favor of Beth Becker Runia in any res judicata or estoppel sense. Obviously *52it is not. Rather the question is whether the $250,000 judgment in the personal injury action is competent evidence on the issue of damages against the insurance agency. Cf. Restatement (Second) of Contracts § 351, comment c (an injured party’s loss resulting from litigation must be reasonable). In my opinion, the $250,000 judgment is unreliable evidence lacking probative value of the reasonableness of Roger’s loss. It was error for the trial court in this case to adopt that sum as the damages sustained by Roger Runia. I say this for two reasons: (1) The additur was made under essentially ex parte, collusive circumstances; and (2) the additur is prima facie unreasonable; it increased a jury’s personal injury award of only $56,000 more than four-fold to $250,000. The increase may or may not be warranted by the evidence (we have no way of telling), but if it is warranted, it was for a jury not the court to decide.
I agree with the majority opinion that an unconditional additur is invalid. This only has relevance in this case as further indication of the unreasonableness of the $250,-000 judgment as a measure of Roger Ru-nia’s loss. Presumably, the remedy for an invalid unconditional additur would have been to make it conditional; Roger Runia should at least have asked for that remedy and then opted for a new trial rather than pay $250,000. He did not do so, preferring to set-up the defendant insurance agency. It is, of course, too late for Beth Becker Runia to move for a new trial on damages in her personal injury action, and arguably the damages recoverable from the insurance agency should be left at $56,000. On the other hand, the trial judge thought the $56,000 verdict grossly inadequate and evidently would have granted Beth a new trial on damages if she had asked for it.
In other words, both the $56,000 verdict and the $250,000 judgment are suspect evidence in this case. Both amounts lack probative value. I agree, therefore, the issue of damages should be retried.1 The trier of fact in this case should consider damages as if a new trial on damages had been granted in Beth Becker Runia’s personal injury suit.2
. One would expect if the insurance agency is not bound by the damages award in Beth’s suit, neither is it bound by the jury’s finding of no negligence on the part of the truck driver. But this would be to view the problem within an irrelevant issue preclusion context. The insurance agency cannot dispute the finding of no negligence on the part of the truck driver because that issue was fairly tried in the personal injury action by the proper parties to that action. In this respect, the insurance agency is not like the second tortfeasor in Hart v. Cessna Aircraft Co., 276 N.W.2d 166 (Minn.1979).
. Beth Becker Runia having received the unconditional additur that she asked for is in no position to argue there should be a new trial on damages. I would treat the situation, however, as if Roger Runia had opted for a new trial on damages in the personal injury action rather than pay $250,000.