December 21, 2009
KLAUS WROBLEWSKI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT, AND MARIE WROBLEWSKI, PLAINTIFF,
ENTERPRISE LEASING OF PHILADELPHIA, DEFENDANT, AND VAUGHAN D. FLETCHER, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-735-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2009
Before Judges Baxter and Coburn.
In this personal injury automobile accident case, defendant Vaughan D. Fletcher moved for dismissal of the complaint on the ground that plaintiffs failed to file the physician's certification required by N.J.S.A. 39:6A-8. The motion was denied. Plaintiffs filed a $50,000 offer of judgment pursuant to Rule 4:58. Fletcher rejected the offer, and a jury returned a verdict awarding plaintiff Klaus Wroblewski $160,000, while awarding no damages on his wife's claim for loss of consortium. Defendant Fletcher filed a motion for a new trial or remittitur, which were denied. Wroblewski filed a motion for attorney's fees and costs pursuant to Rule 4:58, seeking $46,650.96. The judge who had tried the case and disposed of the new trial motion, was no longer available, but the judge who handled all aspects of the case before and after trial awarded Wroblewski costs of $5,081.96 and $26,667 in attorney's fees, for a total of $31,748.96.
Fletcher appealed, offering the following arguments: (1) his motion for dismissal of the complaint should have been granted because plaintiffs failed to provide the certification required by N.J.S.A. 39:6A-8; (2) his new trial motion or his alternative request for remittitur should have been granted because the damages awarded were against the weight of the evidence; (3) the jury charge failed to include instructions on plaintiff's duty to mitigate damages, on the subject of aggravation of a pre-existing injury, and on the time-unit rule; (4) fees and costs should not have been awarded under the offer of judgment rule. Wroblewski cross-appealed, arguing that the judge had erred in determining the amount of fees to which he was entitled.
After carefully considering the record, briefs, and oral argument, we are satisfied that all of the arguments offered by Fletcher are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Fletcher's motion to dismiss was based on plaintiffs' failure to obtain the certification required by N.J.S.A. 39:6A-8(a) from his first treating physician. Actually, plaintiffs attempted to do so, but the doctor, who was treating Klaus Wroblewski for his employer pursuant to the workers' compensation law, was uncooperative. Plaintiff did obtain appropriate certifications from two subsequent treating physicians, and although those certifications were filed six days late, that provided no basis in the circumstances of this case for dismissal. See Casinelli v. Manglapus, 181 N.J. 354, 365 (2004).
On the new trial/remittitur motions, we affirm substantially for the reasons expressed by the trial judge.
The supposed errors in the jury charge were not objected to during trial. Moreover, there was insufficient evidence to support Fletcher's claims that mitigation or aggravation needed to be charged. Consequently, there was no error and certainly no plain error on those aspects of the charge.
Fletcher's claims regarding the time-unit rule are baseless. During closing, all plaintiffs' counsel said was that Klaus had a life expectancy of sixteen years and that he would suffer pain "every single day." Fletcher's counsel objected unsuccessfully and he did not thereafter request a time-unit charge. Utterly absent from plaintiffs' counsel's closing remarks was any reference to a specific monetary unit of measure or, indeed, to any suggestions for equations or formulae for the calculation of the non-economic unliquidated damages. See Friedman v. C & S Car Serv., 108 N.J. 72, 74 (1987). Compare, Henker v. Preybylowski, 216 N.J. Super. 513, 519 (App. Div. 1987); Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 332 (App. Div.), certif. denied, 195 N.J. 520 (2008). Consequently, the trial judge ruled correctly and properly omitted a time-unit instruction while instructing the jury.
Finally, we address the parties' arguments respecting the award of counsel fees and costs to Wroblewski.
Fletcher's only argument is that the rule does not apply to cases in which plaintiff's counsel is providing services on a contingent fee basis. That extraordinary proposition is defeated by the plain and utterly unambiguous language of the rule, which states, in relevant part, as follows: "Except in a matrimonial action, any party may... file with the court, an offer to take a monetary judgment in the offeror's favor...." R. 4:58-1(a). Since this is quite obviously not a matrimonial action, the judge was correct in applying the rule to Wroblewski. Indeed, the Supreme Court has held that under this rule when a contingent fee is involved a "contingency fee enhancement" may be in order. Rendine v. Pantzer, 141 N.J. 292, 337-45 (1995).
However, we are satisfied that the judge erred in the manner in which he applied the rule. Instead of following the approach required by Rendine, supra, 141 N.J. at 334-37, the judge made no detailed findings of fact and, instead, simply determined that since this was a contingent fee case, he would award about sixty per cent of the fees requested.
Wroblewski asks that we exercise original jurisdiction and increase the attorney's fee award to the amount requested. In this regard, we note that the judge who presided at the trial is no longer available. Thus, we cannot refer the case to the judge who is "in the best position to weigh the equities and arguments of the parties[.]" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 447 (2001). Moreover, although Fletcher argued that no fees should be awarded, he failed to include in his appellate briefs any specific arguments with respect to the contents of the detailed certification submitted in support of the fee application. Having carefully reviewed the fee application, we find it to be reasonable under the Rendine standards. Since Fletcher has made no suggestion otherwise, and since we ought to exercise original jurisdiction to dispense with unnecessary further litigation when that course is indicated, AAA Mid-Atlantic v. Prudential Ins., 336 N.J. Super. 71, 78 (App. Div. 2000), we reverse and remand the judgment for amendment to reflect a total award for counsel fees and costs of $46,650.96.
Reversed and remanded.
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