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Benz v. Pires

Decided: January 18, 1994.

KARIN ANNE BENZ, PLAINTIFF-APPELLANT,
v.
HELIO S. PIRES, DEFENDANT-RESPONDENT, AND MICHAEL J. GENERAZIO AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANTS



On appeal from the Superior Court, Law Division, Middlesex County.

R.s. Cohen, D'Annunzio and Wallace. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

Plaintiff brought this auto negligence action against two drivers, defendants Pires and Generazio.*fn1 Pretrial settlement efforts were unsuccessful, but plaintiff and defendant Pires entered into a "high-low" agreement with a floor of $45,000 and a ceiling of $62,500. After a liability trial, the jury found Generazio completely responsible for the accident, and exonerated Pires. On the basis of the high-low agreement, an order for judgment was entered in plaintiff's favor against Pires for $45,000. Plaintiff sought to have prejudgment interest added to the judgment. The Law Division Judge denied plaintiff's application. She appealed; we affirm.

The high-low agreement was announced before trial began:

[PLAINTIFF'S COUNSEL ]: Your Honor, the proposed plan . . . is that we have an agreement with defendant Pires and only defendant Pires to the effect that regardless of the outcome of any finding of the jury at damages phase, if the

verdict is below $45,000, then judgment will be entered in favor of [plaintiff] and against defendant Pires in the amount of $45,000.

In the event that the damages phase jury renders a verdict against defendant Pires between the amount of $45,000 and $62,500, then judgment will be entered for that amount. In the event that the damages phase jury renders a verdict against Mr. Pires and in favor of [plaintiff] exceeding $62,500, the verdict shall be molded and judgment entered for $62,500. With the additional proviso that if the liability phase jury exonerates Mr. Pires fully, then judgment will be entered against him nonetheless in the amount of $45,000 in favor of [plaintiff].

Defendant Pires's counsel responded:

THE COURT: Okay. And the $45,000 will be payable even if this jury saw fit to exonerate your client.

[DEFENSE COUNSEL]: That is correct, your Honor.

THE COURT: But as the quid pro quo, the maximum that you could be ...


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