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Accisano v. Allstate Insurance Co.

June 30, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket NO. L-5818-03.

Per curiam.


Submitted October 11, 2007

Before Judges Cuff and Lisa.

Plaintiff, Patricia Accisano, was injured in a vehicular accident on September 27, 2001. After complying with Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988), she settled with the responsible tortfeasor within that party's $15,000 policy limits. She then proceeded to pursue an underinsured motorist (UIM) claim against her carrier, Allstate Insurance Company, with whom she had $100,000 UIM coverage.

Efforts to settle the UIM claim were unsuccessful, and plaintiff eventually filed suit against Allstate. The one-count complaint recited the happening of the accident, the existence of the Allstate policy containing UIM coverage, and the inability to resolve the claim without litigation. Thus, the complaint stated, "Pursuant to the terms of the insurance agreement, plaintiff now sues for personal injuries, medical bills, pain and suffering, disability and impairment and economic loss." The prayer for relief demanded judgment for compensatory damages. The complaint contained no allegations of bad faith by Allstate, and did not seek any damages caused by any such bad faith. Throughout the litigation, plaintiff never sought to amend her complaint to add any bad faith allegations.

Prior to trial, plaintiff offered to settle the claim for $50,000, which was rejected by Allstate. Plaintiff's attorney claimed to have presented opposing counsel with an offer of judgment, but it is undisputed that no offer of judgment was ever filed with the court, thus rendering the purported offer of judgment ineffectual. See R. 4:58-1a (requiring offer of judgment to be filed with the court).

Plaintiff's most significant injury was a claimed disc herniation at the C5-C6 level. A physician retained by Allstate acknowledged the injury, but opined that the herniation had stabilized, with no functional limitation, leaving plaintiff with a "good to very good" prognosis.

The case proceeded to trial on the sole issue of damages. On June 27, 2006, after hearing testimony from plaintiff, plaintiff's medical expert, and Allstate's medical expert, the jury rendered a verdict in favor of plaintiff in the amount of $250,000. The case was tried by informing the jury that plaintiff's claim was against the responsible tortfeasor (not Allstate). See Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999). Upon return of the verdict, the court stated that, as discussed with counsel prior to trial, the verdict would be molded to reflect judgment against Allstate (not the tortfeasor) in an amount up to the remaining coverage limits of $85,000, depending upon the amount of the jury's verdict. Because the verdict exceeded $85,000, the court proposed molding it to a judgment for Allstate for $85,000. Plaintiff's counsel expressed his agreement.

However, plaintiff's counsel subsequently objected and submitted a proposed form of order requesting entry of judgment against Allstate for $250,000, plus prejudgment interest. The judge rejected that proposal and entered judgment for $85,000.

The judge issued the following statement of reasons:

The Court declined to execute the Order for Judgment as submitted by Robert M. Adochio, Esq., attorney for the plaintiff, Patricia Accisano, notwithstanding that no opposition was submitted by Patrick K. McMorrow, Esq., attorney for defendant, Allstate Insurance Company. It is the Court's opinion that the Judgment against defendant has to be molded to $85,000.00, since that was the amount remaining on the single limit of personal liability on the UM/UIM endorsement in the subject insurance contract.

Further, the Order for Judgment as submitted included pre-judgment interest. This Court finds that by contract between the insured and insurer, there is no basis for pre-judgment interest in either a UM/UIM arbitration proceeding or in a Superior Court, Law Division, civil de novo appeal of such arbitration. See Rivers v. General Accident Group, 192 N.J. Super. 355 (App. Div. 1983). No equitable reasons for the award of pre-judgment interest have been advanced by plaintiff such that the court should exercise its discretion ...

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