Before Judges Newman, Fall and Axelrad. On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-985-93.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this wrongful death action, plaintiff, Mary Louise Elliott-Marine, as Administratrix of the estate of Clifford A. Elliott, appeals the Law Division judge's denial of her motion to confirm a private arbitration award and enter judgment with prejudgment interest and costs.
The litigation arose from the death of plaintiff's twenty-one year old son, Clifford Elliott ("Elliott"), from an alcohol overdose in June 1991. Elliott attended a "keg party" with his friend, defendant Gregory Patterson at the home of nineteen and twenty-one year old defendants, Brian and Gregory Campenella. The hosts' parents, Jerald and Jean Campenella, were on vacation at the time and were unaware of the party. Elliott obtained and consumed part or all of a quart bottle of vodka and was thereafter observed in the backyard of the Campenella home unconscious, in a pool of vomit, with the empty bottle of vodka lying beside him. Since the age of two, Elliott had been an insulin-dependent diabetic. Patterson drove Elliott home; in the car Elliott regained consciousness and engaged in semicoherent conversation. Elliott declined Patterson's offer to help him up to his room, and indicated that he wanted to sit outside on the steps and smoke a cigarette. Patterson left. Early the next morning Elliott was discovered by his step-father. He was not breathing and was pronounced dead at the hospital. Post-mortem testing indicated that Elliott's blood alcohol level was .445 and that the cause of death was alcohol poisoning.
On January 29, 1993, plaintiff, as Administratrix Ad Prosequendum and General Administrator of her son's estate, filed a wrongful death action against Jerald Campenella, Jean Campenella, Gregory Campenella, and various fictitious defendants, seeking compensation based on defendants' alleged joint and several liability. On June 2, 1993, plaintiff amended her complaint to include Gregory Patterson. On September 22, 1993, defendants filed an answer and cross-claimed for contribution and indemnity. On November 9, 1994, plaintiff amended her complaint to include Brian Campenella.
On October 25, 1994, the scheduled trial was adjourned and the case was placed on the military inactive list because Gregory Patterson was serving in the armed forces. On June 3, 1997 and April 4, 2000, plaintiff's counsel filed an Offer of Judgment against defendants "in the sum of $300,000, including interest and costs." The case was re-activated and scheduled for trial on April 3, 2000.
After the case was returned to the active trial list, counsel for defendants, Gregory and Brian Campenella, raised the possibility of proceeding with an alternative dispute resolution ("ADR"). Shortly after this initial discussion of ADR, Donna L. Freidel substituted in as counsel for Gregory and Brian Campenella. Correspondence between plaintiff's counsel Kenneth Austin and Ms. Freidel through November and December 2000 resulted in an order executed by the court on December 8, 2000, consented to by Austin, Freidel, and counsel for defendant, Patterson, removing the matter from the trial list scheduled for December 11, 2000, so long as it could be "submitted to a private binding arbitration hearing." Counsel for plaintiffs and defendants, Gregory and Brian Campenella, agreed that the result of the private arbitration would be subject to a high-low range of $250,000 to $50,000, of which the arbitrator, retired Judge Gruccio, would not be advised. The parties further agreed to dismiss Jerald and Jean Campenella from the case prior to the arbitration. Counsel for co-defendant Patterson agreed to submit to the binding arbitration proceeding, without cost and without exposure toward the result.
The arbitration was held on December 14 and 18, 2000. Mary Louise Elliott-Marine, Robert Marine, Patterson, Brian Campenella and Gregory Campenella testified. Counsel also submitted briefs, expert reports, deposition testimony, medical evidence and other documentation in support of their cases. 185 N.J. 1 (1980) (setting forth the legal analysis for damages to be awarded when parents sue for the wrongful death of their child). Judge Gruccio prefaced the hearing with the statement that his decision was binding except for limited circumstances pursuant to N.J.S.A. 2A:24-1. Plaintiff's counsel never mentioned the issue of prejudgment interest or costs at that time.
On January 19, 2001, Judge Gruccio rendered a written decision in which he recited the facts and discussed and analyzed each party's legal position as to liability. The arbitrator then considered the expert reports of both parties regarding vocational economic data together with the testimony presented at the hearing, which he analyzed under the Green v. Bittner1 guidelines. He concluded that Patterson had no liability, that the Campenellas were 66.67% negligent and that their negligence was a proximate cause of Elliott's death, and that Elliott was 33.33% comparatively negligent. Judge Gruccio entered a net award against Gregory and Brian Campenella in the amount of $160,000. The binding arbitration award did not mention or provide for any interest or costs above and beyond the $160,000 award.
On March 2, 2001, plaintiff moved in the Superior Court to
confirm the arbitration award pursuant to N.J.S.A. 2A:24-7 . . . [and for] entry of judgment in favor of the plaintiff including costs and pre-judgment interest on this award from the date of the filing of the complaint to the entering of judgment. The plaintiff is entitled to pre-judgment interest as a matter of law per R. 4:42-11(b) and Benz v. Pires, 269 N.J. Super. 574 (App. Div. l994).
In his certification, plaintiff's counsel provided several demand letters and offers for judgment dating from l997 to early 2000, asserting that these documents evidenced plaintiff's intent to seek interest and costs if the matter proceeded further. In response, Ms. Freidel certified as follows:
5. No discussion was held, at any time, regarding the application of the Court's arbitration rules, set forth in N.J.S.A. 2A:24-8. Nor was any such understanding confirmed with the selected arbitrator Judge Philip Gruccio, or with the other parties to the action. The only clear meeting of the minds was on the point that there would be a binding high/low in the amounts of $50,000 - $250,000 which numbers were not to be communicated to the arbitrator. If there were an award of no cause, or something less than $50,000 against the Campenella defendants, the Hartford would pay a minimum of $50,000. Similarly, regardless of how high the award was, the maximum to be paid by the Hartford on behalf of defendants, Brian and Greg Campenella would be $250,000. Both parties waived their rights to a jury or bench trial and to an appeal. No discussion was ...