The issue raised here is whether R. 4:42-11(b), providing for prejudgment interest, applies to a judgment arising out of a personal injury, products liability case in which the jury verdict was based upon a breach of an express warranty.
The case arises out of an accident which occurred on March 27, 1967 when a car driven by plaintiff's husband went out of control and turned over as the result of a failure of the right rear tire. Plaintiff's husband was killed and on June 7, 1968 his widow brought the instant death action against the manufacturer/seller of the tire. Recovery was sought both on the theory of strict liability in tort and breach of express warranty.
On March 1, 1972, almost five years after the fatal accident and almost four years after the institution of suit, a jury verdict was returned in favor of plaintiff in the sum of $125,000.
The trial judge submitted the case to the jury on both theories -- i.e., strict liability in tort and breach of express warranty -- and instructed it, in the event it found for plaintiff, to state whether such verdict was based on one or the other or both theories. Pursuant to this instruction the jury reported that the basis of its verdict was breach of express warranty.
On March 1, 1972 judgment was entered in favor of plaintiff against defendant in the sum of $125,000 with costs. No reference was made to prejudgment interest.
Appeals followed in which the judgment against defendant was affirmed by the Appellate Division, 126 N.J. Super. 401 (1974), and the Supreme Court, 64 N.J. 260 (1974). The principal litigation finally terminated March 12, 1974, slightly less than seven years after the accident, when the Supreme Court denied a petition for rehearing.
The instant issue is before this court on plaintiff's motion to require defendant to pay interest on the judgment pursuant to R. 4:42-11. Properly, the plaintiff should have moved to correct the judgment entered by the trial
court to include the interest provided by R. 4:42-11(b). If that rule applies to this case, its application is mandatory. Whatever infirmity lies in the form of the motion is purely procedural and the motion will be treated as one to correct the judgment.
R. 4:42-11(b) reads as follows:
Tort actions. Except where provided by statute with respect to a public entity or employee, the court shall, in tort actions, including products liability actions, 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.
That the case was a products liability action is not disputed by the parties. The dispute as to the application of the rule arises from the nature of that products liability action. More specifically, defendant contends that since the jury based its verdict solely on breach of express warranty, the liability was ...