On appeal from Superior Court of New Jersey, Law Division, Morris County.
Before us are consolidated appeals by the drivers of two vehicles involved in an automobile accident. The jurors found each driver 50% negligent. They awarded plaintiff Jane Lang, a passenger in one of the cars, $450,000 and her husband, plaintiff Peter Lang, $50,000.
Although ten separate points are presented in the two briefs for defendants, only one causes us concern. Following the trial both defendants moved for judgment n.o.v. or a new trial and, in any event, for a remittitur as to damages. At that time counsel for defendant Carroll also moved to limit the damages to those asserted in a statement of the amount of damages claimed furnished on demand pursuant to R. 4:5-2. Plaintiffs served such a statement asserting that the claim of the personal injury plaintiff was $150,000 and that of her husband was $25,000. The verdicts exceeded those amounts substantially. The trial judge denied all the motions. Relying on reference to an unnamed Law Division decision (unquestionably Perdomo v. Goldstein, 122 N.J. Super. 14 (Law Div.1972)) with which he announced his entire agreement, he concluded that the statement required by the Rule "is not a limit. It is a starting point for negotiations." He refused to reduce the amount of the verdicts.
The purpose and effect, if any, of the statement of the amount of damages claimed required by R. 4:5-2 are not at all clear from the Rule and have been the subject of only one published opinion, Perdomo, supra. The matter is most troublesome. The case for ineffectiveness of the Rule respecting damage limitation is well articulated in Perdomo. On the other hand, as counsel for defendant Carroll argues to us, not without considerable persuasion, "this construction [in Perdomo ] of R. 4:5-2 renders the rule meaningless." We agree with this.
It is notable that Perdomo does not indicate any function for this Rule. Perdomo simply decides the matter on the writer's concept of historical derivation. The trial judge in the matter before us, after stating that "frankly, I don't know whether it [the statement] has all that much meaning at the present time anyway," opined that the meaning which the one in this case had was "as a negotiation, the first steps in negotiations." Obviously that could be achieved without a statement, by means of a telephone call. Counsel for plaintiffs in their brief before us urge that the statement "is nothing more that [ sic ] a fair and reasonable attempt by counsel to estimate, at a given point and time, an approximate value of the case."
Considered study of this explication, including that in Perdomo, convinces us that the requirement of the Rule has no real purpose that could not be as adequately served without the Rule. On the other hand if the statement is limiting, then the Rule does serve a purpose. As between two constructions, one of which appears to be superfluous or lack purpose, we will choose the one that does not. See Hackensack Bd. of Education v. Hackensack, 63 N.J. Super. 560, 569 (App.Div.1960) (holding that legislative language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless).
We realize that such a determination is burdened with many of the infirmities which caused an abandonment of the ad damnum clause, as noted in Perdomo. In response to the counter-suggestion that the real purpose for the change was simply to get the figures away from the jury, we recognize and accept the abuses, also noted in Perdomo and mentioned by the trial judge here, which produced astronomical figures in the ad damnum and, in effect, rendered that useless as a practical matter as well.
It is quite likely that that may occur again with the R. 4:5-2 statement. But we must deal with the problem as it appears before us. We must decide whether there is a useful purpose for the written statement required by the Rule. There is not, in our judgment, if the statement is not limiting. Accordingly
we hold, with a reservation appearing hereafter, that the statement is limiting and although a jury verdict exceeding the amount thus limited shall not for that reason invalidate the verdict, the trial judge shall on motion reduce the verdict to come within the limited amount. Perdomo v. Goldstein, supra, is overruled.
Having thus accorded this statement a place in the procedural scheme of things similar in kind to a pleading, we are satisfied it should be accorded the benefits of R. 4:9-1 and R. 4:9-2. In this fashion a trial judge can review for equities and abuses in the context of the circumstances of each case and assure himself, counsel and the ...