Serico v. Rothberg, M.D., 2017 N.J. Super. LEXIS 19 (Approved for Publication Feb. 16, 2017)

Appellate Division addresses interplay between high/low agreements and Offers of Judgment following plaintiff’s verdict.

The plaintiff sought to recover for an alleged delay in diagnosing colon cancer. During discovery, the plaintiff filed an Offer of Judgment in the amount of $750,000. The Offer of Judgment Rule, R. 4:58-2, permits recovery for costs of suit and all reasonable litigation expenses if a money judgment is awarded in an amount that exceeds 120% of the Offer of Judgment. In Serico, the parties proceeded to trial and, during deliberations, entered into a high/low agreement with $300,000 as the low and $1 million as the high. The jury returned a verdict in the plaintiff’s favor in the amount of $6 million, resulting in judgment in the amount of $1 million.

Thereafter, the plaintiff sought to recover fees and costs as the $1 million judgment was more than 120% of the $750,000 Offer of Judgment. The Appellate Division affirmed the trial court’s denial of the plaintiff’s motion as New Jersey law adheres to the proposition that, generally, “[a] plaintiff cannot recover more than the amount agreed to as the high limit.” In Serico, the Panel found no evidence that the plaintiff intended to preserve her rights under R. 4:58-2 or otherwise show an intent that the entire matter was not being resolved by entering into the high/low agreement. The Panel did leave open the possibility—moving forward—that the plaintiff could successfully seek to enforce an Offer of Judgment, even with a high/low agreement, so long as this issue is specifically addressed during negotiations.

 

Case Law Alerts, 2nd Quarter, April 2017

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