On appeal from Superior Court, Law Division, Monmouth County.
King, Havey and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.
Defendant appeals and plaintiffs cross appeal from a judgment entered on a jury verdict in favor of plaintiffs which was subsequently molded and corrected by the trial court into a $278,677.20 judgment with interest from September 25, 1983.
On August 10, 1983, plaintiffs, William and Betty Lane, and the American National Fire Insurance Company filed a complaint against defendant, Oil Delivery, Inc. The complaint and its later amendment sought damages for losses incurred by the
Lanes in a fire at their home and for the subrogated claim of American for monies paid to the Lanes under a policy of insurance.
The complaint alleged negligence, breach of contract and strict liability in tort as grounds for liability. Defendants answered and asserted a separate defense of negligence on the part of the Lanes.
The jury, finding negligence of both parties as proximate causes of the fire and damage sustained, determined defendant to be 60% negligent and the Lanes to be 40% negligent. It assessed total damages sustained by the plaintiffs at $425,985.
The trial judge denied motions by the defendant for a new trial or remittitur. He further denied plaintiffs' motion for a new trial, judgment notwithstanding the verdict and additur. However, he granted plaintiffs' motion for correction of mathematical error by the jury, adding $38,477 to the amount of the judgment. The court, relying on R. 4:42-11(b), then awarded interest from September 25, 1983, a date six months after the fire.
On appeal, defendant contends:
I. FINDING DEFENDANT SIXTY PERCENT NEGLIGENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. WHERE AMOUNT OF VERDICT IS SO DISPROPORTIONATE WITH PROOFS AS TO DEMONSTRATE MISTAKE, THE CASE MUST BE REMANDED.
III. TRIAL COURT IMPROPERLY ALLOWED PLAINTIFFS TO RENDER TESTIMONY ON ITEMS OF PERSONALTY.
Plaintiffs, on cross appeal, contend that:
I. THE REPAIRMEN SAW NO RISK IN STORING LOGS NEAR AN OIL BURNER, SO A JURY SHOULD NOT FIND A HOMEOWNER NEGLIGENT ON THAT BASIS.
II. SERVICEMEN ARE STRICTLY LIABLE IN TORT, SO THE JURY SHOULD HAVE BEEN INSTRUCTED ON ITS HIGHER STANDARDS OF CONTRIBUTORY NEGLIGENCE.
III. CONTRIBUTORY NEGLIGENCE SHOULD USE THE SAME STANDARDS IN NEGLIGENCE ACTIONS AND IN STRICT LIABILITY ACTIONS.
IV. INSURERS HAVE THE RIGHT TO SUE AND THE JURY SHOULD KNOW THAT PART OF ITS VERDICT WILL ...