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Hendricks v. A.J. Ross Co.

Decided: April 14, 1989.

GEORGE HENDRICKS AND MARGARET E. HENDRICKS, PLAINTIFFS-APPELLANTS, CROSS-RESPONDENTS,
v.
A.J. ROSS COMPANY, DEFENDANT-RESPONDENT, CROSS-APPELLANT, AND J.C. TRUCKING CO., JOHN CORDANO, INDIVIDUALLY, AND JOHN DOE (A FICTITIOUS NAME), JOINTLY AND SEVERALLY, DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Plaintiff George Hendricks was injured during the course of his employment with Bellezza Construction Company. An action was filed by Hendricks and his wife Margaret E. Hendricks per quod against defendants, J.C. Trucking Company, John Cordano and A.J. Ross Company (Ross). On December 10, 1987, a jury returned a total verdict of $65,000 in favor of the plaintiffs against Ross and Cordano.*fn1 In addition, plaintiffs were awarded $13,000 in prejudgment interest.

Defendants' attorney sent a letter to the court dated December 19, 1987, urging that plaintiffs should not be awarded prejudgment interest because their insurer, Midland Insurance Company (Midland), was insolvent and liability for the judgment was the responsibility of the New Jersey Property Liability Insurance Guaranty Association (the Association). Defendants argued that N.J.S.A. 17:30A-5(d) precludes the imposition of any obligation for prejudgment interest upon the Association.

The trial court rejected defendants' argument by a letter dated January 11, 1988. Accordingly, the court entered judgment awarding prejudgment interest in favor of plaintiffs.

Defendants then made a motion for reconsideration of the part of the judgment awarding prejudgment interest. The trial court concluded by oral opinion delivered on February 5, 1988 that neither the Association nor the defendants were responsible for prejudgment interest. Thus, plaintiffs could only recover that part of the judgment from Midland's receiver. Accordingly, the court entered an order on February 29, 1988, providing that prejudgment interest "shall not be paid by" the Association or the defendants personally. Plaintiffs have appealed from this order.

On March 21, 1988, defendants filed a motion seeking a credit pursuant to N.J.S.A. 17:30A-5(d) in the amount of any workers' compensation benefits which George Hendricks received for the injuries suffered in the accident.*fn2 By opinion delivered on May 3, 1988, the trial court denied defendant's motion on the grounds that it had not been filed in a timely manner. The court also stated that even if the motion had been timely, defendants would not be entitled to a credit for any workers' compensation benefits paid to Hendricks. An order memorializing the denial of this motion was entered on May 17, 1988. Ross has appealed from this order.

We consolidated plaintiffs' and Ross' appeals on our own motion. We now affirm.

I

The responsibility of the Association for payment of claims for insurance policies written by an insolvent carrier is limited to "covered claims." N.J.S.A. 17:30A-5(d) provides in pertinent part that "[a] 'covered claim' shall not include amounts for interest on unliquidated claims." The trial court held that prejudgment interest on a tort claim constituted "interest on [an] unliquidated claim" and that the Association was therefore not responsible for the payment of prejudgment interest.

The usual understanding is that a tort claim, at least one seeking damages for pain and suffering, is unliquidated. See Busik v. Levine, 63 N.J. 351, 356-357 (1973), appeal dism. 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973). Indeed, in authorizing the award of prejudgment interest on tort claims through the adoption of R. ...


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