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Malick v. Seaview Lincoln Mercury

February 20, 2008

THOMAS MALICK, PLAINTIFF-RESPONDENT,
v.
SEAVIEW LINCOLN MERCURY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1407-04.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 23, 2008

Before S.L. Reisner, Gilroy and King.

Defendant Seaview Lincoln Mercury appeals from a March 27, 2007 order of the trial court awarding plaintiff Thomas Malick $224,552 in prejudgment interest under the offer of judgment rule, R. 4:58-2. We reverse and remand for a plenary hearing.

I.

The central issue in this personal injury case is whether the parties' high-low agreement, reached in the middle of the trial, precluded an award of interest under the offer of judgment rule, R. 4:58-2.*fn1 Plaintiff filed a complaint on May 10, 2004, alleging that he was injured on defendant's premises. Plaintiff served defendant with a timely offer of judgment for $650,000 on August 4, 2006, but defendant did not accept the offer.

In the middle of the trial, plaintiff's attorney R.C. Westmoreland negotiated a high-low agreement with William Davis, a senior litigation manager for defendant's insurer Zurich Insurance Company (Zurich), located in Pittsburgh, Pennsylvania. The only evidence of the negotiations in this record consists of two e-mails and one letter.

On January 18, 2007, Westmoreland sent Davis an e-mail confirming "what I believe we agreed to for the Hi Lo. The high is $1,000,000 and the low is $175,000." Westmoreland then offered the following caveat:

These numbers apply to the verdict and prejudgment interest ONLY. They do not apply to legal fees and litigation costs that may be awarded in the event that Plaintiff's Offer of Judgment is successful and the court awards such fees and costs.

For instance, if Plaintiff gets a $1,400,000 verdict and the court then awards Plaintiffs counsel fees and costs under R. 4:58 of $150,000. You pay only $1,000,000 of the verdict but the entire $150,000 of the fees/costs awarded.

In reply, Davis sent Westmoreland an e-mail accepting "the terms of this high/low agreement." Davis further indicated I do not think the legal fees issue is going to be an issue because we do not ...


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