• Appellate Division Addresses Interplay Between High/Low Agreements and Offers of Judgment Following Plaintiff’s Verdict.
  • April 27, 2017 | Author: Nicholas A. Rimassa
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Roseland Office
  • 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.