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Saturday, March 29, 2008

Thomas Malick v. Seaview Lincoln Mercury

02-20-08 A-4631-06T3

In the middle of a personal injury trial, prior to which
plaintiff had made an offer of judgment, the parties entered
into a $1 million/$175,000 high-low agreement in which plaintiff
waived "prejudgment interest," but did not waive "attorneys fees
and costs" under the offer of judgment rule. When the jury
returned a $5 million verdict, thus entitling plaintiff to a $1
million judgment under the high-low agreement, plaintiff sought
counsel fees, costs and prejudgment interest under the offer of
judgment rule, Rule 4:58-2, contending that the term "costs"
included prejudgment interest under that Rule. Because Rule
4:42-11 and Rule 4:58-2 now both refer to awards of "prejudgment
interest," we concluded that the agreement was ambiguous. The
trial judge should not have summarily awarded plaintiff interest
but should have held a plenary hearing to resolve the ambiguity;
we remanded the case for that purpose. We also held that under
R. 4:58-2, if prejudgment interest was to be awarded, it should
be calculated on the $1 million judgment rather than the $5
million verdict.