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Riley v. Savary

Decided: July 13, 1972.

ERVIN S. RILEY AND ELLEN RILEY, PLAINTIFFS
v.
MARILOU CONWAY SAVARY AND NOAH L. KLINGLESMITH, DEFENDANTS



Rosenberg, J.c.c. (temporarily assigned).

Rosenberg

The instant matter before this court is a motion by plaintiffs pursuant to R. 4:42-11(b) for an order to direct defendants to pay prejudgment interest. In opposing the motion, the defendants have attacked the validity of R. 4:42-11(b).

On June 6, 1969 plaintiff Ervin S. Riley sustained personal injuries in an automobile accident with defendant Marilou Conway Savary. The complaint was filed October 14, 1969 and on February 10, 1972 a jury awarded plaintiff

Ervin S. Riley the sum of $7,500, and to his wife, who sued per quod , the sum of $700. On February 17, 1972 judgment was entered on the verdict.

R. 4:42-11, effective January 31, 1972 provides in pertinent part:

(b) Tort Actions. In tort actions, including products liability actions, the court shall include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later.

On the basis of this Rule plaintiffs seek interest from December 6, 1969 to February 17, 1972.

Defendants have set forth various arguments in opposition to plaintiffs' motion for interest.

First, defendants contend that "The rule is not applicable in this case as plaintiffs never amended their complaint to seek interest at any time before judgment was entered." However, this court does not think that the failure to amend the complaint bars the plaintiffs from collecting interest. As the court in Jersey City Redev. Agency v. Bancroft Realty Co. , 117 N.J. Super. 418, 424 (App. Div. 1971) held: "Bancroft's pleadings contain no claim for interest, and apparently interest was not sought at the trial level. Nevertheless, under the totality of the circumstances here presented we deem it 'just' to allow interest at 6% * * *."

Defendants' next contention is that R. 4:42-11(b) is violative of both the United States and New Jersey Constitutions.

Defendants argue that the 14th Amendment of the United States Constitution is violated on two grounds. The first is that the allowance of prejudgment interest constitutes a deprivation of property without due process of law, since the citizens of New Jersey have had the Rule arbitrarily imposed upon them without having had the opportunity to be heard. However, such a contention of unconstitutionality is without merit in ...


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