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Wednesday, February 22, 2017

LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. A-1717-15T1


 LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. 
A-1717-15T1 
In this appeal, we address the viability of a plaintiff's claim for fees under the offer of judgment rule, R. 4:58-1 to -6, after the parties enter into a high-low settlement agreement and the jury returns a verdict in excess of the high. The Law Division denied plaintiff's motion for fees under the Rule because plaintiff and defendant entered into the agreement and plaintiff did not expressly reserve her right to recover fees under the Rule. Based on the court's experience, it found that the "custom and usage" in the practice of law dictated that without evidence of a reservation of rights, a claim under the Rule was waived by entering into a high-low agreement. On appeal, plaintiff contended that although she did not reserve her rights, she did not waive them by entering into the agreement. Defendant argued that plaintiff's failure to reserve her rights gave rise to a waiver or abandonment of any claim she had for attorney's fees and, in any event, as the trial court found, the "custom and usage" practiced in the area provides that such claims are deemed abandoned when a party enters into a high-low agreement. 
We concluded that, while the trial court's reliance on its personal experience was misplaced, it correctly determined that the amount of plaintiff's total recovery from defendant was limited by the ceiling imposed by the high-low agreement because 

plaintiff did not indicate any intention to preserve her claim under the Rule when the parties placed the agreement on the record.