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Busik v. Levine

Decided: July 6, 1973.

JOHN R. BUSIK, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. LEVINE, DEFENDANT-APPELLANT. GILMA GIRALDO (BUSIK), PLAINTIFF-RESPONDENT, V. JOSEPH M. LEVINE, DEFENDANT-APPELLANT. DONALD F. FOLEY AND LILLIAN FOLEY, HUSBAND AND WIFE, PLAINTIFFS-RESPONDENTS, V. UNITED ENGINEERS & CONSTRUCTORS, INC. AND PUBLIC SERVICE ELECTRIC AND GAS CO., DEFENDANTS-APPELLANTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Sullivan. For reversal -- Justice Mountain and Judge Conford. The opinion of the Court was delivered by Weintraub, C.J. Hall, J. (concurring in result). Conford, P.J.A.D., Temporarily Assigned, dissenting. Mountain, J., dissenting. Hall and Sullivan, JJ., concur in result.

Weintraub

These cases involve the validity of R. 4:42-11(b), adopted on December 21, 1971 and effective on January 31, 1972, which authorizes prejudgment interest in tort actions. The accidents here involved occurred before the rule was adopted, but the cases came to trial after the effective date of the rule. Interest as provided in the rule was included in the judgments. We certified defendants' appeals before they were argued in the Appellate Division.

The principal charge is that prejudgment interest is a matter of "substantive" law and as such beyond the constitutional grant to the Supreme Court of the power to "make rules governing * * * the practice and procedure" in all courts, Art. VI, § 2, para. 3. Hence, it is argued, we trespassed upon the legislative domain in adopting the rule, in breach of the principle of separation of powers embodied in Art.

III, § 1, of the Constitution. The argument is supplemented with the proposition that defendants were thereby deprived of the opportunity to be heard required by due process of law.

The rule was upheld in Riley v. Savary, 120 N.J. Super. 331 (Law Div. 1972), but that case did not come to us for review.

I

Although it is said with respect to interest on claims that "in this country interest is generally of statutory origin," Consolidated Police and Firemen's Pension Fund Commission v. City of Passaic, 23 N.J. 645, 653 (1957), the contrary is true in our State. The Legislature has dealt with usury; that is, it has fixed the upper limit of the interest for which an ordinary loan may be made, see N.J.S.A. 31:1-1, but there is no statute dealing with interest upon other obligations or claims or with interest upon judgments. The controlling rules have always been and remain judge-made. See Jersey City v. O'Callaghan, 41 N.J.L. 349, 353-354 (E. & A. 1879); Verree v. Hughes, 11 N.J.L. 91, 92 (Sup. Ct. 1829); Erie Railway Co. v. Ackerson, 33 N.J.L. 33, 36 (Sup. Ct. 1868); Simon v. New Jersey Asphalt and Paving Co., 123 N.J.L. 232, 234 (Sup. Ct. 1939); Cohrs v. Igoe Brothers, Inc., 71 N.J. Super. 435, 448 (App. Div. 1962).

And, briefly, these are the rules which the courts of this State developed: As to interest upon judgments, the practice permitted collection at the "legal" rate, that is, at the rate permitted to be contracted under the usury statute to which we have referred. With respect to prejudgment interest, our courts of law assessed interest, if the demand was liquidated, at the same "legal" rate on the assumption that the creditor could have earned such interest if his obligor had paid him what was due, see Jersey City v. O'Callaghan, supra, 41 N.J.L. at 354, but declined to allow interest on claims that were unliquidated. The justice of that limitation has

been questioned, as we will develop in a moment. Our courts of equity allowed or withheld interest or fixed the rate as justice dictated. See Small v. Schuncke, 42 N.J. 407, 415-416 (1964); Agnew Co. v. Paterson Board of Education, 83 N.J. Eq. 49, 67-70 (Ch. 1914), affirmed o.b., 83 N.J. Eq. 336 (E. & A. 1914); Jardine Estates, Inc. v. Donna Brooks Corp., 42 N.J. Super. 332, 340-341 (App. Div. 1956); Dial Press, Inc. v. Phillips, 23 N.J. Super. 543, 551-552 (App. Div. 1952), certif. denied, 12 N.J. 248 (1953); McGlynn v. Schultz, 90 N.J. Super. 505, 529-530 (Ch. Div. 1966), affirmed, 95 N.J. Super. 412 (App. Div. 1967), certif. denied, 50 N.J. 409 (1967); Brown v. Home Development Co., 129 N.J. Eq. 172, 178 (Ch. 1941).

In this setting we adopted R. 4:42-11 which reads:

" Interest: Rate on Judgments; in Tort Actions.

(a) Rate. Judgments, awards and orders for the payment of money and taxed costs shall bear interest at 6% per annum from the date of entry, except as otherwise ordered by the court.

(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. The contingent fee of an attorney shall not be computed on the interest so included in the judgment."

It will be noted that paragraph (a) deals with interest upon judgments. We dealt in that rule with post-judgment interest because the Legislature had amended the usury statute, N.J.S.A. 31:1-1, to permit the rate upon ordinary loans to go as high as 8% if the Commissioner of Banking and Insurance so provides. By adopting paragraph (a), we advised the bar and the clerks of the courts that judgments would continue to carry interest at the rate of 6%, in accordance with our prior practice. That paragraph has not drawn fire, although the constitutional challenges addressed to paragraph (b) would be no less appropriate if they have substance. We could have waited until some litigant raised the issue, but we thought it good sense and good administration

to inform all concerned through the vehicle of a rule incorporated in our rules of civil practice. As we have said, our doing so has not excited criticism. It is subparagraph (b), relating to prejudgment interest, which is attacked.

We repeat there is no conflict with any statute; there is no statute on the subject. Nor can it be doubted that the Court has the power and the continuing responsibility to change these judge-made rules of law as justice may require. In short, had the proposition in paragraph (b) been announced in a case of A against B, there could be no claim that the Court lacked the power or in any way transgressed upon the area constitutionally allotted to the Legislature. Thus it is not our power to act that is questioned; it is the method we chose to exercise that power.

But if we erred in adopting that method (we will demonstrate in Point II below that we did not), this litigation would not end. For plaintiffs here are entitled to ask for the same result which the challenged rule provides. They cannot be denied their due merely because we mistakenly expressed our view in a rule of court. The underlying issue is thus before us. The merits have been argued fully, and the litigants thus afforded a hearing. Nothing new, however, emerged. This is not surprising, for the subject is not new, and was fully explored at a public hearing before we adopted the rule.

We turn then to the merits. Interest is not punitive, Wilentz v. Hendrickson, 135 N.J. Eq. 244, 255-256 (E. & A. 1944); here it is compensatory, to indemnify the claimant for the loss of what the moneys due him would presumably have earned if payment had not been delayed. We mentioned earlier the judge-made limitation that interest should not be allowed if the claim was unliquidated. That limitation apparently rested upon the view that a defendant should not be deemed in default when the amount of his liability has not been adjudged. But interest is payable on a liquidated claim when liability itself is denied, even in good faith, Kamens v. Fortugno, 108 N.J. Super. 544, 552-553 (Ch.

Div. 1970). The fact remains that in both situations the defendant has had the use, and the plaintiff has not, of moneys which the judgment finds was the damage plaintiff suffered. This is true whether the contested liability is for a liquidated or for an unliquidated sum. For that reason, the concept of a "liquidated" sum has often been strained to find a basis for an award of interest.

It is said there is now, in general, a willingness to allow interest on unliquidated claims as justice may dictate. 22 Am. Jur. 2 d, Damages, § 181, pp. 259-260. In upholding the retrospective application of a New York statute providing for interest in contract actions upon unliquidated damages, the United States Supreme Court observed that "The statutory allowance is for the purpose of securing a more adequate compensation by adding an amount commonly viewed as a reasonable measure of the loss sustained through delay in payment," and that "It has been recognized that a distinction, in this respect, simply as between cases of liquidated and unliquidated damages, is not a sound one." Funkhouser v. J.B. Preston Co., 290 U.S. 163, 168, 54 S. Ct. 134, 136, 78 L. Ed. 243, 246 (1933).

So also, a refusal to allow interest in tort matters has been criticized. See Moore-McCormack Lines v. Amirault, 202 F.2d 893 (1 Cir. 1953). It is questioned whether justice is thereby done as between parties to the suit. But beyond their interest, there is also a public stake in the controversy, for tort litigation is a major demand upon the judicial system. Delay in the disposition of those cases has an impact upon other litigants who wait for their turn, and upon the taxpayers who support the system. And here there is a special inducement for delay, since generally the claims are covered by liability insurance, and when payment is delayed, the carrier receives income from a portion of the premiums on hand set aside as a reserve for pending claims. See In re Insurance Rating Board, 55 N.J. 19 (1969). Hence prejudgment interest will hopefully induce prompt defense consideration of settlement possibilities. In that

meaningful way, prejudgment interest bears directly upon the judicial machinery and the problems of judicial management. It is this facet, added to the consideration of justice between the litigants, which warrants our holding that prejudgment interest be payable in these matters.

The proposition we thus accept is not uniquely ours. There are a number of States which so provide by statute. See Colorado: Rev Stats. 1963, Ann., § 41-2-1; Louisiana: LSA-R.S. 13:4203; Michigan: Stat. § 27A.6013, M.C.L.A. § 600.6013, New Hampshire: RSA § 524:1-b (Supp.); New York: CLPR § 5001(a) (damages to property); North Dakota: § 32-03-05; Oklahoma: 12 Okla. St. Ann. § 27(2); Rhode Island: Gen. Laws, § 9-21-10. We add, parenthetically, that it is of no moment that there the principle was established by the Legislature. As we have already noted, the subject of interest on claims rests wholly in case law in our State, and, assuming as we do for the moment that the issue is one of substantive law, the power and responsibility of the judiciary to deal with the subject in the absence of a statute cannot be questioned.

We see no strength in the assertion that the allowance of interest duplicates some element of damage or constitutes a payment with respect to damages not yet experienced. The jury is not instructed to add interest to its verdict in tort cases. In any event an instruction to the jury can obviate the risk. And with respect to the criticism that a verdict may embrace losses not yet suffered, the answer is that a verdict necessarily anticipates future experience, and the interest factor simply covers the value of the award for the period during which the defendants had the use of the moneys to which plaintiffs are found to be entitled. We think the equities are met when the date for the commencement of liability for interest is fixed as set forth in paragraph (b) of R. 4:42-11 (the rule here under attack).

The question arises whether our holding that prejudgment interest be paid should be imposed retrospectively. We see no reason not to apply the usual rule that judge-made

law is retrospective. Under our holding plaintiffs merely receive what in justice is their due, and defendants are required to turn over a gain they received at the plaintiffs' expense. We note that where liability for prejudgment interest was established by statute, the statutes were held to be "remedial" and hence applicable to actions brought before the statute's effective date, and this notwithstanding the usual rule that statutes operate prospectively. Pepin v. Beaulieu, 102 N.H. 84, 151 A.2d 230 (Sup. Ct. 1959); Foster v. Quigley, 94 R.I. 217, 179 A.2d 494 (Sup. Ct. 1962); Kastal v. Hickory House, Inc., 95 R.I. 366, 187 A.2d 262 (Sup. Ct. 1963); Ballog v. Knight Newspapers, Inc., 381 Mich. 527, 164 N.W. 2d 19 (Sup. Ct. 1969); see also Wilcoxon v. Sun Oil Co., 49 Misc. 2d 589, 267 N.Y.S. 2d 956 (Sup. Ct. 1966).

Finally we add that we see no merit in the proposition advanced by the intervenor, that the usual insurance policy, which provides for payment of interest upon a judgment, does not cover prejudgment interest and therefore we should not impose such liability. It is enough to say the carrier's obligation to pay the judgment plainly includes the obligation to pay the constituent elements of damage incorporated in that judgment, among which, of course, is the item of prejudgment interest.

II

For the reasons given in "I" above, the question whether this Court exceeded its power when it adopted R. 4:42-11(b) is academic. The underlying merits have been reached and decided. Nonetheless we will state why we believe the adoption of the rule was consonant with proper judicial performance.

A

Defendants point out that the rule-making power granted the Supreme Court in Art. VI, § 2, para. 3, relates to

"practice and procedure," and from this grant defendants would infer that this constitutional provision inferentially dictates the mode whereby the Supreme Court may make "substantive" law. But the constitutional provision is what it purports to be -- a grant of power with respect to "practice and procedure." It does not purport to deal with substantive law or to prescribe a format for the discharge of the Court's responsibility as to that topic. Limitations of course do exist, but they arise, not from the cited secton of the Constitution, but from the nature of the judicial process and of the Court's responsibility.

Nor, for that matter, is the constitutional grant of power with respect to "practice and procedure" a mandate that that subject may be dealt with only in a rule-making process. Many matters of practice and procedure repose in case law. Sometimes the procedures established in a judicial opinion will later be embodied in a formal rule of practice and procedure.*fn1 Commonly they are not.*fn2 Or a formal rule may expressly call for a case-by-case exposition, as for example, R. 4:4-4(i) relating to service of process which expressly leaves the outer reaches of substituted service to "due process of law." Indeed the most valued rights upon which life, liberty, and property depend are "procedural" and are embedded in the Constitutions of the United States and of this State. Although those rights are procedural, the courts have not chosen to particularize those rights by way of a rule-making process. Cases are legion which expound their

meaning and the consequences of infringement. And, finally, a matter of practice may be prescribed in an administrative directive.*fn3

The constitutional grant of rule-making power as to practice and procedure is simply a grant of power; it would be a mistake to find in that grant restrictions upon judicial techniques for the exercise of that power, and a still larger mistake to suppose that the grant of that power impliedly deprives the judiciary of flexibility in the area called "substantive" law.

B

"Substantive" law of course is regularly established in cases brought before the Court. But there is no constitutional mandate that a court may not go beyond what is necessary to decide a case at hand. Whether an issue will be dealt with narrowly or expansively calls for a judge's evaluation of many things, including the need for guidance for the bar or agencies of government or the general public. To that end, the Court may express doubts upon existing doctrines, thereby inviting litigation, or may itself raise an issue

it thinks should be resolved in the public interest, or may deliberately decide issues which need not be decided when it believes that course is warranted. So a court may decide an issue even though the litigation has become moot, again in the public interest. John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 579 (1971); Board of Education, East Brunswick Tp. v. East Brunswick, 48 N.J. 94, 109 (1966); Delaware River and Bay Auth. v. International Org., etc., 45 N.J. 138, 142 (1965); Cooke v. Tramburg, 43 N.J. 514, 516 n. 1 (1964); State v. Perricone, 37 N.J. 463, 469 (1962), cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962).

Defendants refer to the statement in Winberry v. Salisbury, 5 N.J. 240, 248 (1950), cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), that "While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power" (emphasis ours). There can be no quarrel with that proposition, but one might note in passing that Winberry is a classic example of a deliberate decision upon a far-reaching issue, involving the respective powers of the Supreme Court and the Legislature, which no doubt could have been avoided but which the majority believed should be decided then in the public interest.

C

And finally, it is simplistic to assume that all law is divided neatly between "substance" and "procedure." A rule of procedure may have an impact upon the substantive result and be no less a rule of procedure on that account. Speaking of the proposition that a court may not promulgate rules governing substantive law in the exercise of their rule-making power, Professors Levin and Amsterdam agreed that "rational separation is well-nigh impossible." "Legislative Control over Judicial Rule-making: A Problem in Constitutional

Revision," 107 U. Pa. L. Rev. 1, 14-15 (1958). See also State v. Otis Elevator Co., 12 N.J. 1, 24 (1953) (Jacobs, J. dissenting). As said in Hanna v. Plumer, 380 U.S. 460, 471, 85 S. Ct. 1136, 1144, 14 L. Ed. 2d 8, 16-17 (1965), "The line between 'substance' and 'procedure' shifts as the legal context changes. 'Each implies different variables depending upon the particular problem for which it is used.'" One context is conflict of laws; another is retrospective application of statutes; and a third is law-making, the subject at hand.

As to conflict of laws, the traditional approach was to decide whether the issue was "substantive" or "procedural," the law of the forum to be applied if the matter was "procedural." The Restatement (2d) of Conflict of Laws (1971), comment b to § 122, p. 352, correctly discards that approach and goes directly to the question whether the law of the forum should be applied with respect to each particular subject.*fn4 As to a conflicts issue, the forum would prefer to apply rules with which it is familiar, thus to avoid the inherent margin of error when the forum tries to decide what

another jurisdiction would likely do. On the other hand, if the ultimate result is permitted to turn upon the forum selected, there are the evils and injustices of forum-shopping.

When the context is retrospective application of a statute, the values involved are different, for then the target is whether some right or liability is so "vested" as to make it unjust to change the rules. Morin v. Becker, 6 N.J. 457, 464-471 (1951); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 380-388 (1954). In Rosenthal, in which the Joint Tortfeasors Contribution Law was applied to a payment ...


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