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Accisano v. Allstate Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2008

PATRICIA ACCISANO, PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 to award such pre-judgment interest. See Derfuss v. New Jersey Manufacturers Insurance Company, 285 N.J. Super. 125 (App. Div. 1995).

Plaintiff appeals, arguing:

POINT I

THE TRIAL COURT ERRED IN IMPROPERLY EXECUTING A CONFORMED ORDER WHICH DID NOT REFLECT THE JURY'S VERDICT.

POINT II

NEW JERSEY INSURANCE LAW REQUIRES A CARRIER TO MAKE A GOOD FAITH EFFORT TO RESOLVE FIRST PARTY BENEFIT CLAIMS FOR WHICH AN INTENTIONAL POLICY OF FAILING TO DO SO SHOULD CARRY A POLICY OF EXPOSURE SIMILAR TO THAT IMPOSED UPON CARRIERS IN THIRD PARTY ACTIONS.

POINT III

PRE-JUDGMENT INTEREST WAS IMPROPERLY EXCLUDED FROM THE TRIAL COURT'S ORDER OF JUDGMENT.

The arguments presented by plaintiff in Points I and II suffer from the same infirmities as those presented by the plaintiffs, which we rejected, in Taddei v. State Farm Indemnity Co., ___ N.J. Super. ___ (App. Div. 2008), issued on this date. For the reasons stated in Taddei, we reject plaintiff's arguments in Points I and II.

With respect to Point III, the trial judge in this case rejected the request for prejudgment interest because plaintiff failed to provide any equitable reasons supporting the request. The judge adequately expressed his reasons for denying the request, and we find no mistaken exercise of discretion in his determination. Plaintiff's reliance on McMahon v. N.J. Manufacturers Insurance Co., 364 N.J. Super. 188 (App. Div. 2003), is misplaced because the prejudgment interest there was allowed pursuant to a valid offer of judgment.

The July 25, 2006 judgment in favor of plaintiff against Allstate for $85,000 is affirmed.

20080630

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