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Marko v. Zurich North America Insurance Co.

July 18, 2006

CHRISTINA MARKO AND GEORGE MARKO, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
ZURICH NORTH AMERICA INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-343-05.

The opinion of the court was delivered by: Collester, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 31, 2006

Before Judges Coburn, Collester and Lisa.

On July 27, 2000, plaintiffs Christina Marko and George Marko filed a personal injury suit in the Law Division, Middlesex County, against People Pleasers, Inc., which was insured by defendant, Zurich North America Insurance Company (Zurich). A jury verdict was returned against People Pleasers, Inc. assessing fifty-one percent negligence with forty-nine percent against plaintiff Mrs. Marko. The jury verdict on damages was in the gross amount of $506,575.36, which the trial judge reduced by forty-nine percent, the comparative negligence assessed to Mrs. Marko, for a net award of $258,353.43. The trial judge calculated pre-judgment interest in the amount of $14,896.65 pursuant to R. 4:42-11(b) and entered judgment in favor of plaintiffs and against People Pleasers for the total amount of $273,250.08.

On March 25, 2004, plaintiffs filed a notice of appeal from the calculated amount of pre-judgment interest, asserting that the July 1, 2003, amendment to R. 4:42-11(b), prohibiting prejudgment interest for future economic losses, should not be applied retroactively to a lawsuit commenced prior to that date or, alternatively, the rule should be relaxed in the interest of justice. While the appeal was pending, plaintiffs filed an order to show cause on June 6, 2004, in the Mercer County Law Division to convert the judgment obtained against People Pleasers to a judgment against Zurich and to award post-judgment interest, counsel fees, costs and litigation expenses.

Defendant answered and obtained an order transferring venue to Middlesex County. On January 14, 2005, we filed our opinion on plaintiffs' appeal of the amount of pre-judgment interest awarded, concluding that "plaintiffs' contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E)." Less than two weeks later, on January 25, 2005, plaintiffs' counsel sent a letter to Zurich's attorney demanding post-judgment interest in the amount of $10,244.61. Defense counsel responded by saying that Zurich was willing and able to pay the original judgment amount.

Although the matter had been remanded back to Middlesex County because of the unavailability of the trial judge who heard the personal injury case, plaintiff's action seeking judgment against Zurich and post-judgment interest was heard by another judge who gave the following decision:

Reviewing everything that I have in reference to this issue, I am going to grant a judgment in the amount of $11,794.28.

However, I will not allow for attorneys' fees or court costs. There's a certain measure of -- of this action that seems to be more than advocacy on the part of the plaintiffs in reference to this. I am going to award it, but I would not reward them with attorneys' fees or costs in reference to this matter.

On June 17, 2005, the hearing judge entered the following order:

[J]udgment is hereby entered in favor of the plaintiff Christina Marko against the defendant Zurich Insurance Company of North American as follows: $258,353.43 representing the net award of the jury verdict, $14,896.65 pursuant to R. 4:42-11(b) representing pre-judgment interest, and $11,794.28 representing post-judgment interest pursuant to R. 4:42-11(a)(ii) for a total judgment of $285,044.36.

Defendant Zurich appeals from this order on grounds that there was no basis to convert a judgment against People Pleasers to one against Zurich, that the issue of post-judgment interest should have been decided by the judge who presided over the negligence trial, and that the award of post-judgment interest was an abuse of discretion. Plaintiffs ...


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